Opinion
H049116
10-25-2023
THE PEOPLE, Plaintiff and Respondent, v. PAUL GENE GAUWAIN, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 113483
LIE, J.Penal Code section 2960 et seq., authorizes civil commitment to the State Department of State Hospitals of certain criminal defendants-"mentally disordered offenders" (MDO)-"to be provided necessary treatment" as a condition of parole. (See § 2962.) Upon the expiration of an initial MDO commitment, the prosecution may petition for one-year extensions of the commitment (§ 2970, subd. (b)), subject to the defendant's right to trial on the propriety of continued involuntary treatment. (§§ 2970, subd. (b) &2972, subd. (a).) The California Supreme Court has squarely held that, absent a waiver of statutory time limits or good cause for delay, a defendant whose current commitment expires during the pendency of a timely filed petition for an extension is "entitled, as a matter of due process, to release [from involuntary MDO treatment] pending trial." (People v. Cobb (2010) 48 Cal.4th 243, 249 (Cobb); see also People v. Lara (2010) 48 Cal.4th 216, 229 (Lara) [noting the post-release availability of civil commitment under the Lanterman-Petris-Short Act].) But the high court has also held that "[n]o relief is available" where "[t]he fact that defendant was not released did not affect the validity of the eventual extension order," which may then be affirmed. (Cobb, supra, at p. 253.)
Unspecified statutory references are to the Penal Code.
On appeal from the extension of his MDO commitment following a trial delayed during the COVID-19 pandemic for eight months beyond the expiration of his prior term, Paul Gene Gauwain argues that his continued commitment in the interim violated his due process rights. He further argues that the trial court erred in admitting psychiatric records that contained multiple levels of hearsay. Although we agree that the exigencies of the pandemic do not fully explain either the eight-month delay of a video court trial on a one-year recommitment petition or Gauwain's remaining hospitalized as an MDO in the eight-month gap, we conclude that neither the untimeliness of Gauwain's trial nor the admission of the psychiatric records affected the validity of the resulting recommitment order. We affirm the order.
I. BACKGROUND
A. Procedural History
In 1987, Gauwain was convicted of two counts of lewd and lascivious conduct (§ 288, subd. (a)). In 1989, he was declared an MDO and committed to a state hospital for involuntary treatment. Between 1989 and 2020, his commitment was regularly extended by the trial court.
On February 11, 2020, the Santa Clara County District Attorney filed a petition seeking to compel Gauwain's continued treatment under section 2970, as his current commitment was set to expire on July 29, 2020. The petition sought to extend Gauwain's MDO commitment to July 2021.
A court trial on the petition was initially set for April 13, 2020, with Gauwain to appear by video on CCTV. But on March 4, 2020, Governor Gavin Newsom declared a state of emergency in response to the global outbreak of COVID-19. (Stanley v. Superior Court (2020) 50 Cal.App.5th 164, 167 (Stanley).) In response to the pandemic, the Chief Justice of the California Supreme Court and the presiding justice of the Santa Clara County Superior Court issued a number of emergency orders extending certain statutory deadlines to commence trials and other matters under Government Code section 68115. None of the orders expressly referenced proceedings under section 2972.
After a number of continuances, on January 5, 2021, Gauwain moved to dismiss the February 2020 petition on due process grounds, seeking to be discharged from Coalinga State Hospital. The prosecutor then filed a second petition to extend Gauwain's commitment for an additional year, through July 29, 2022. In February 2021, the trial court denied Gauwain's motion to dismiss the first petition.
B. The Trial
On April 20, 2021, after Gauwain personally waived his right to a jury trial, the trial court held a consolidated bench trial on both the first and second petitions-to compel involuntary treatment from July 29, 2020, to July 29, 2021, and from July 29, 2021, to July 29, 2022, respectively.
At the outset of the trial, the trial court denied Gauwain's renewed motion to dismiss the first petition.
1. Dr. Joe Debruin
Debruin, a forensic psychologist at Coalinga State Hospital, evaluated Gauwain in November 2020 based on written records, including psychiatric progress notes, physician notes, interdisciplinary notes, prior MDO evaluations, and other documents related to Gauwain's mental health. Debruin's evaluation was focused on the period of time between July 29, 2020, and the evaluation date in November 2020.
Debruin opined that Gauwain had two mental disorders, schizophrenia and pedophilic disorder. Debruin described schizophrenia as a severe mental disorder, lifelong in duration, that is characterized by features such as delusional thinking, auditory or visual hallucinations, and disorganized thinking; it requires antipsychotic medication for symptom management. Debruin testified that Gauwain had experienced paranoia, disorganized speech and thinking, religious preoccupation, and auditory hallucination. Debruin explained that Gauwain's pedophilic disorder is characterized by a period of time of at least six months where an individual has had deviant sexual behaviors and fantasies about underage children.
Debruin believed that Gauwain was not in remission for any of his two disorders. Lacking information about Gauwain's condition between November 2020 and the April 2021 commencement of trial, Debruin opined that it would be "exceptionally, exceptionally rare" for someone to show signs of remission in such a timeframe. Debruin further opined that pedophilic disorder is not susceptible of remission but is a chronic disorder that is managed or potentially managed with adequate psychosocial treatment. According to Debruin, Gauwain was not adequately managing his pedophilic disorder, as he had not yet gained significant insight into his impulses or his past behaviors. Debruin also believed that Gauwain's schizophrenia was not being successfully managed at the hospital. Despite medication, Gauwain was still having auditory hallucinations and was still noted as being paranoid and disorganized.
Debruin opined that Gauwain, if left to his own devices, would likely become more symptomatic because there was a high probability that he would not take his medication. Debruin testified that the "synergy" between Gauwain's schizophrenic loss of reality contact and his pedophilic impulses would "put[] him at significant risk in the community." Based on his evaluation, Debruin found that Gauwain had not been fully compliant with the treatment that he had been offered at the hospital, and he had not made substantial progress on his sex offender treatment.
2. Dr. Robin Campbell
Campbell, a consulting psychologist at Coalinga State Hospital, personally interviewed Gauwain in late 2018 for 35 to 40 minutes. During the interview, Campbell observed Gauwain exhibit signs of "religious delusions," "paranoid delusions," and "auditory hallucinations." Gauwain told Campbell that he had been romantically involved with a staff member at Napa State Hospital, that the staff member's eggs had been harvested, and that a surrogate had carried their baby to term. Gauwain also said that his child had a trust fund and that he constantly heard the voice of his "wife," whom he identified as the biblical Mary Magdalene. Gauwain told Campbell that he was at the hospital because prior evaluators had perjured themselves in a conspiracy to keep him hospitalized without cause. Gauwain told Campbell that he was overmedicated. Asked about his commitment offenses, Gauwain said that he had never actually pleaded guilty to the crimes, which he said were fabricated.
Campbell testified that this conversation "supported the record in terms of his symptoms," and Gauwain does not argue the truth of his recounted relationship and fatherhood via surrogacy.
Because Gauwain declined to be reinterviewed in 2019, when Campbell evaluated him for an extension of his commitment, she relied on hospital records for her evaluation. Campbell opined that at the time of her evaluation in 2019, Gauwain had two severe mental disorders, schizophrenia and pedophilia, neither of which was in remission. At that time, Gauwain posed a significant risk to others and lacked insight into his mental illness.
3. Dr. Saowarut Kittimongcolporn
Kittimongcolporn, a psychiatrist at Coalinga State Hospital, had been a part of Gauwain's treatment team since August 2019. Kittimongcolporn typically saw Gauwain about once a month, except when Gauwain declined to be personally seen. According to Kittimongcolporn, Gauwain had schizophrenia and was prescribed several medications.
Kittimongcolporn increased Gauwain's medication dosage after he became more aggressive. Because Gauwain initially resisted adjustment in his medication, Kittimongcolporn obtained a court order for him to be involuntarily medicated. Kittimongcolporn later changed some of Gauwain's medications after he became "somewhat psychotic" and had "verbal exchanges" with another patient.
At the time of trial, Gauwain remained under an involuntary medication order. Although Gauwain was now compliant with the order, he often complained about being "forced" to take his medication, which he expressed he did not need. Since issuance of the involuntary medication order, Gauwain had refused medication on at least one occasion. Kittimongcolporn had also had several "intense" conversations with Gauwain about his belief that it was wrong to force him to accept medication.
Kittimongcolporn opined that for Gauwain to be released, he would need to first have insight into the nature of his treatment and the kind of treatment that works for him; he would then require significant supervision to transition into the community. Kittimongcolporn could not foresee anything other than hospitalization for Gauwain, opining that it would be "very difficult" for him to do well at a lower level of supervision.
4. Gauwain
Testifying on his own behalf, Gauwain said he did not have a consistent psychiatrist until Dr. Kittimongcolporn took over his case. While in the hospital, he had held several different jobs, including a job where he learned how to use equipment and a job where he cleaned.
Gauwain testified about an August 2019 incident: "First, I seen my cousin. I told him-he wanted to see my full blur. Okay. Then shortly after that I started praying in tongues, getting the Holy Spirit by the Father. And they kept trying to force me to stop and force me to stop. And I was just-I was under the spell by the Father, and I couldn't stop. [¶] And until the point where they banged my head against the wall, threw me to the floor, bleeding all over the place, dragging me to the side room, tied me to the bed, couldn't feel with my legs. [¶] And it's been hell since they've been com[ing] around with spiritual guns, shooting me all the time, even from places outside the building where they have snipers and shit. Okay? They're doing this shit to my spirit. They've done it to God, Daniel, Raphael, and [H]e has totally said they're all going to hell for it." Gauwain claimed that hospital staff insisted that he had hurt himself.
Gauwain testified that he had told Dr. Kittimongcolporn that he wanted to comply with his medication regimen. Gauwain was also comfortable with going to outpatient treatment clinics. He believed he could get better treatment "in [his] own living room with [his] laptop" than at the hospital. Gauwain complained about his treatment by hospital staff, faulting staff for his reported resistance to "PRN" (as needed) medication: according to Gauwain, the staff would "nitpick" and "irritate, they irritate until you're about ready to pull your hair out of your head," then offer PRN medication. Gauwain further claimed: "[The staff] command their souls. They get on their phones to their family, say go over the top, give me this ability, go over, talk to him, all this unholy shit against the Son. [¶] . . . [¶] It was written in the Bible. Jesus said wicked one, what's on this earth buys the devil against the Son. Okay?"
Gauwain denied ever having been sexually attracted to children and characterized his commitment offenses as a "frame-up." Gauwain testified that if he was offered sex offender therapy, he "would still answer the questions like I'm supposed to, yes." Gauwain believed that the medications he was currently required to take increased his heart rate and made him feel lightheaded.
C. The Trial Court's Decision
At the conclusion of the court trial, the trial court found that the prosecution had met its burden to prove the requirements set forth under section 2970, subdivision (c) beyond a reasonable doubt. The trial court thereafter granted both recommitment petitions, extending Gauwain's commitment between July 29, 2020, and July 29, 2021, and July 29, 2021 to July 29, 2022.
II. DISCUSSION
A. Due Process Violation
Gauwain argues that his due process rights were violated when the trial on his first petition, which sought to extend his commitment from July 29, 2020, to July 29, 2021, was continued without giving him an opportunity to object, and by his continued commitment past his prior commitment's expiration date without a personal time waiver or a finding of good cause. As we explain, the untimeliness of the trial on the first petition did not deprive the trial court of its jurisdiction to consider the matter and did not ultimately affect the validity of his subsequent recommitment. Accordingly, we will affirm.
1. Additional Background
As we have briefly summarized, ante, due to the COVID-19 pandemic, Gauwain's trial did not proceed on April 13, 2020, as initially set. There are no minute orders or records of any proceedings taking place between February 28, 2020, and January 5, 2021, when Gauwain moved to dismiss the petition filed in February 2020 on due process grounds.
According to Gauwain's motion, shortly after the trial was set and before the trial could take place, the California Supreme Court granted the Santa Clara County Superior Court's request for emergency orders to be implemented in response to the global COVID-19 pandemic. The orders extended time for certain "time not waived" or speedy criminal trial matters, among others. Based on these emergency orders, which did not expressly include proceedings under section 2972, Gauwain's trial was automatically continued on the master trial calendar beginning on April 13, 2020. He argues he was denied the opportunity to object to any continuances, as these were effected by the court clerk in advance of the master trial calendar date without notice to either Gauwain or his counsel. Gauwain insisted that there was no good cause to justify the delay in his trial, as the trial court began limited operations to hear trials starting in May 2020, and additional jury trial departments in Santa Clara County were opened in July and August 2020.
The prosecutor opposed the motion to dismiss. In an attached declaration, the prosecutor represented that she had been in contact with Gauwain's counsel throughout the proceedings and that Gauwain's counsel agreed to the multiple continuances as they arose. The continuances were the result of the trial court closures in response to the COVID-19 pandemic, and, when the trial court resumed operations, due to the court's limited operational capacity. Several times, the public defender's office sent the trial court a list of cases to be prioritized for trial, but it was not until November 2020 that the public defender identified Gauwain's case among those needing priority.
On February 2, 2021, the trial court heard Gauwain's motion to dismiss. The trial court acknowledged its resumption of jury trials but noted "a significant backlog of time-not-waived criminal trials that [it was] currently working through" and noted the difficulties inherent in determining "which due process rights should take precedence over others" when it came to scheduling trials and other proceedings during the COVID-19 pandemic. Citing Stanley, supra, 50 Cal.App.5th 164, the trial court acknowledged the hardship to Gauwain from the ensuing delay but found that neither the prosecutor nor the courts were responsible for the nationwide emergency caused by the pandemic. Concluding that "the situation was [not] contemplated" and could not have been avoided, the trial court denied Gauwain's motion to dismiss.
Although the trial court did not expressly address Gauwain's release, we understand the denial of the motion to encompass all relief sought.
On February 10, 2021, the prosecutor filed a second recommitment petition under section 2972, seeking to extend Gauwain's commitment from July 29, 2021, to July 29, 2022. In his trial brief, Gauwain renewed his request for the trial court to dismiss the first petition on due process grounds. Before commencing the consolidated trial on the two petitions, the trial court considered and denied Gauwain's renewed motion to dismiss.
The petition was not file stamped but the parties do not dispute its authenticity or its filing as the operative second petition.
2. Legal Principles
For certain offenders with severe mental health disorders who have been convicted of specified crimes, the MDO statutory scheme authorizes commitment for compulsory treatment by the Department of State Hospitals as a condition of parole. (§ 2962.) "[I]f the parolee's or prisoner's severe mental health disorder is not in remission or cannot be kept in remission without treatment" (§ 2970, subd. (a)), the district attorney may petition the superior court to order "continued involuntary treatment for one year" (§ 2970, subd. (b)).
Under section 2972, subdivision (e), the district attorney must file a recommitment petition before the expiration of the MDO's current commitment term. (People v. Allen (2007) 42 Cal.4th 91, 104.) The statutory requirement of filing before the expiration of the prior commitment term is mandatory. (Ibid.; Lara, supra, 48 Cal.4th at p. 228.)
In contrast, the statutory deadline for commencing a recommitment trial is directory, not mandatory; therefore, a trial court does not lose jurisdiction to entertain a recommitment petition even if the prior commitment term has since expired. (Cobb, supra, 48 Cal.4th at pp. 249-250; see § 2972, subd. (a)(2) [trial on the petition "shall" begin at least 30 calendar days before "the time the person would otherwise have been released, unless the time is waived by the person or unless good cause is shown"].) Although section 2972, subdivision (a)'s deadlines are not mandatory, "without a time waiver or good cause, section 2972 does not permit continued confinement when an extension trial does not begin before the scheduled release date." (Cobb, supra, at p. 252.)
At the recommitment trial, "[i]f the court or jury finds that the patient has a severe mental health disorder, that the patient's severe mental health disorder is not in remission or cannot be kept in remission without treatment, and that by reason of the patient's severe mental health disorder, the patient represents a substantial danger of physical harm to others, the court shall order the patient recommitted to the facility ...." (§ 2972, subd. (c).) The commitment "shall be for a period of one year from the date of termination of parole or a previous commitment or the scheduled date of release from prison as specified in Section 2970." (Ibid.)
3. Analysis
The"' "root requirement" of due process is that an individual be given an opportunity for a hearing before being deprived of any significant liberty or property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.'" (Cobb, supra, 48 Cal.4th at p. 250.) Gauwain argues that his continued confinement past the expiration of his prior commitment term was unjustified and warrants reversal of the recommitment order.
We need not reach Gauwain's contention that each continuance of the trial required Gauwain's personal waiver of time or a finding of good cause beyond the trial court's ongoing struggles to manage and cope with operational delays caused by the pandemic. We assume that the pandemic ceased to constitute good cause to continue what was ultimately a five-hour court trial by WebEx for months beyond both the trial court's undisputed resumption of in-person jury trials and the expiration of his prior commitment. But to the extent that this de facto extension without trial of Gauwain's involuntary MDO treatment violated his due process rights, we follow Cobb, supra, 48 Cal.4th at p. 249 in holding that the validity of the eventual recommitment order forecloses his entitlement to relief.
Gauwain does not dispute that the Chief Justice and the presiding judge had authority to issue comparable emergency orders extending time for trial in MDO proceedings.
4. Prejudice and Remedy
In Cobb, the California Supreme Court held that section 2972's statutory deadlines for beginning a trial on a MDO recommitment are directory, not mandatory. (Cobb, supra, 48 Cal.4th at pp. 249-250.) Thus, in Cobb, even though a MDO recommitment petition was not tried until 23 days after the defendant's scheduled release date, the trial court at that time had not lost jurisdiction to conduct the trial. (Id. at pp. 247, 249.) Although Cobb held that "without a time waiver or good cause, section 2972 does not permit continued confinement when an extension trial does not begin before the scheduled release date," the California Supreme Court ultimately held that "[t]he fact that defendant was not released [after the expiration of the prior term] did not affect the validity of the extension order." (Cobb, supra, at p. 252.) Thus, "[n]o relief [was] available" for the defendant, despite the due process violation arising from the untimely trial. (Id. at p. 253 [affirming judgment].)
When concluding that no relief was available, Cobb primarily relied on its companion case, Lara, supra, 48 Cal.4th 216, which arose from the extension of a commitment following a verdict of not guilty by reason of insanity (NGI) under section 1026.5. (Cobb, supra, 48 Cal.4th at p. 253.) In Lara, the district attorney filed a petition to extend the defendant's commitment less than a month before his scheduled release date in violation of the statutory timelines set forth under section 1026.5. (Lara, supra, at p. 222.) Eventually, nearly seven months after his original commitment term had ended, a jury found that the defendant represented a substantial danger of physical harm to others, and the trial court extended his commitment for two years starting from the date his term had originally been set to expire. (Id. at p. 223.) The Court of Appeal reversed and directed the trial court to grant the defendant's motion to dismiss the commitment petition, finding that the defendant's due process rights had been violated. (Ibid.) The California Supreme Court, however, reversed the Court of Appeal's decision, concluding that the defendant "was not entitled to the dismissal of the extension on petition on due process grounds." (Ibid.)
Lara explained that if a defendant is prejudiced because an extension petition is filed before the expiration date of the prior commitment, but it is too late to permit reasonable time for trial preparation, "a defendant who so moves should be released pending trial on the extension petition. Otherwise, the defendant would be faced with the equally unacceptable choices of going to trial unprepared or being held without trial beyond the release date." (Lara, supra, 48 Cal.4th at p. 236.)
A defendant released from an NGI or MDO commitment may then be subject to confinement under the Lanterman-Petris-Short Act (LPS Act, Welf. & Inst. Code, § 5000 et seq.), and "[a] defendant who falls under the provisions of the LPS act is held in a therapeutic setting and is entitled to the more stringent timeframes and procedural protections the LPS Act provides." (Lara, supra, 48 Cal.4th at p. 236.)
In contrast, if "prosecutorial delay" causes prejudice to a defendant in a case where the defendant still has reasonable time to prepare for trial, "the court must consider whether and what remedial action is required. First, the court must balance the explanation for the delay against the prejudice resulting from it. [Citations.] If the justification for the delay outweighs its prejudicial effect, the defendant may remain confined, pending trial, beyond the schedule release date. If, however, good cause is not shown, or the good cause shown does not outweigh the prejudice suffered, the court must fashion a remedy." (Lara, supra, 48 Cal.4th at p. 236.) "The degree of prejudice will depend on a variety of factors, including how late the filing is, the amount of time reasonably required to prepare for trial and mount a defense, and whether action by the court or defense counsel contributed to the delay." (Id. at p. 232.)
In Lara, the California Supreme Court ultimately held that the defendant "did not suffer prejudice in the primary sense of the term. The fairness of [the defendant's] eventual trial was not affected by the due process violation. [Citation.] He was ultimately tried by jury, represented by competent and prepared counsel, and accorded all applicable trial safeguards." (Lara, supra, 48 Cal.4th at p. 233, fn. omitted.) Lara held that in the future those defendants who find themselves in the Lara defendant's circumstances would be entitled to release at the end of their current terms pending a trial on their extension petitions, subject to possible proceedings under the LPS Act. (Lara, supra, at p. 236.) But in the particular case before the Lara court, "no relief [was] appropriate" because the trial court retained jurisdiction to try the petition, as the statutory deadlines under section 1026.5 are directory, not mandatory, the petition to extend the commitment was filed before the current term expired, and the trial "while untimely, was . . . fair." (Lara, supra, at p. 236). Thus, the "violation of the statutory timelines [under section 1026.5 did] not warrant reversal." (Ibid., fn. omitted)
Applying the principles set forth in Cobb and Lara, no relief is available in Gauwain's case. The petition to extend Gauwain's commitment was timely filed before his current term expired, in compliance with section 2972, subdivision (e). The trial court thus retained jurisdiction to try the later petition, even after the prior term expired. (Cobb, supra, 48 Cal.4th at p. 253; see Lara, supra, 48 Cal.4th at pp. 224-228.) Although Gauwain was entitled to be released pending the trial on the recommitment petition after the expiration of his prior term, that relief is no longer available. (See Lara, supra, at p. 236.) And here, the trial, though untimely, ultimately satisfied the procedural requisites for adjudicating a recommitment petition-advised of his right to a jury trial and represented by competent counsel, Gauwain waived his jury right and proceeded by way of a court trial, with sufficient time to mount his defense. (See Lara, supra, at pp. 232-233.)
Arguing that reversal is required, Gauwain primarily relies on People v. Litmon (2008) 162 Cal.App.4th 383 (Litmon). Litmon, however, governed a commitment under a different statutory scheme-the Sexually Violent Predator Act (Welf. &Inst. Code, § 6600 et seq.)-than the MDO statute at issue here, where our analysis is governed by the principles set forth two years later by the California Supreme Court in Cobb. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, Litmon is otherwise distinguishable, in that this court then held that the due process violation was "not mooted by the trial court's retroactive order of indeterminate commitment, which we find to be improper." (Litmon, supra, at p. 406.) In Litmon, the trial court erroneously sought to obviate pretrial delays by applying new statutory amendments to make what was originally a two-year term of confinement an indeterminate term of confinement, without a trial of any kind on the merits. (Id. at p. 412.) No such judicial overreach is present here.
Gauwain further argues that by waiting to try him until eight months after his prior term expired, the trier of fact never actually determined whether he met the MDO criteria while confined pending trial. Gauwain, however, cites to no authority for the proposition that the trier of fact at the time of the section 2972 hearing must evaluate whether he met the criteria at some point prior to the trial date. Rather, section 2972, subdivision (c) is worded in the present tense-that the trial court or jury must "find[] that the patient has a severe mental health disorder, that the patient's severe mental health disorder is not in remission or cannot be kept in remission without treatment, and that by reason of the patient's severe mental health disorder, the patient represents a substantial danger of physical harm to others"-in other words, the trier of fact's conclusions should be focused on a defendant's condition at the time of the trial itself. (See Cobb, supra, 48 Cal.4th at p. 252 ["the three criteria that must be satisfied for continued [MDO] treatment relate, not to the past, but to the defendant's current condition"].)
Gauwain also argues that there is no procedure in section 2970 that permits a retroactive commitment. But in Myers v. Superior Court (2022) 78 Cal.App.5th 1127, the Fifth Appellate District held that a recommitment term commences on the date of the prior term's expiration, notwithstanding the fact that the defendant in Myers had been out of custody for a period of over 10 months while awaiting trial. (Id. at pp. 1141-1142.) As in Myers, the recommitment term on the first petition appropriately commenced on July 29, 2020, the expiration date of the prior term.
Finally, Gauwain argues that had he been released at the expiration of his prior commitment term, the evidence gathered between July 29, 2020, and April 20, 2021, "would have been unavailable." He thus suggests that he was prejudiced by the pretrial delay because the passage of time permitted the accrual of additional evidence about his mental health. However, at the extension proceeding, "the critical question at an extension trial is an MDO's current condition." (Cobb, supra, 48 Cal.4th at p. 247.) "Does the defendant continue to have a severe mental disorder? Is the disorder in remission? Does the defendant continue to represent a substantial danger of physical harm to others? (§ 2973, subd. (c).)" (Cobb, supra, at p. 252.) The focus is on the defendant's present condition and the ongoing necessity of continued involuntary treatment. Accordingly, it would have been improper for the trier of fact to consider Gauwain's recommitment petition-particularly the second petition, the trial of which was not delayed-without considering the relevant facts as to his present mental state. We note as well that Gauwain makes no claim his clinical presentation varied over the course of the pretrial delay and articulates no theory by which the testimony of any of the experts could have been more favorable to discharge had they not considered evidence that accrued during the period of delay.
Gauwain does not otherwise claim that "either the delay in the trial or his continued confinement 'interfered with his ability to prepare for his defense or otherwise undermined the reliability of the verdict.'" (Cobb, supra, 48 Cal.4th at pp. 255-256 (conc. opn. of Baxter, J.).) We do not discount the inherent prejudice of prolonged confinement without trial. But Gauwain does not articulate how the delay prejudiced him in the adjudication of the petition. And, as we have stated, the California Supreme Court in Lara acknowledged that "being held without trial beyond the release date" caused prejudice, but "the remedy for this prejudice would have been release pending trial, subject to LPS Act proceedings"-a remedy that is no longer available here. (Lara, supra, 48 Cal.4th at p. 233.)
Accordingly, under Cobb and Lara, any violation of Gauwain's due process rights in the delayed trial of the recommitment petition did not affect the validity of the subsequent recommitment. (Cobb, supra, 48 Cal.4th at p. 253; Lara, supra, 48 Cal.4th at p. 236.) Thus, Gauwain is not entitled to a reversal.
B. Admission of Hospital Records
Gauwain argues that the trial court erred in admitting People's Exhibits 2 and 3, his hospital and psychiatric records, as the documents contained multiple levels of hearsay. We conclude that Gauwain has forfeited his claims, and assuming no forfeiture, any error was not prejudicial.
1. Additional Background
Before trial, defense counsel requested that all expert witnesses be admonished not to relay case specific facts unless the expert either has personal knowledge of the facts, the expert is asked a hypothetical question based on competent evidence already admitted, or the facts are admitted for a non-hearsay purpose or pursuant to a hearsay exception. Although defense counsel conceded that some of Gauwain's hospital records could be admitted pursuant to a hearsay exception such as the official public records exception under Evidence Code section 1280 or the business records exception under Evidence Code section 1271, he maintained that some portions of the hospital records were inadmissible. Defense counsel took issue with information generated from other agencies, including past psychological examinations. Defense counsel thus broadly requested that "these types of information" be excluded unless a hearsay exception applied.
Defense counsel in particular argued in his motion in limine that some of the subpoenaed documents from the Department of State Hospitals contained multiple levels of hearsay that could not be admitted, specifically pointing to: (1) statements made by Gauwain's parents about his history, (2) recitations of previous hospitalizations that were not a part of the subpoenaed records, (3) recitations of witness statements from previous hospitalizations by non-hospital employees, (4) records in the court file not generated by court staff or "deficient in authentication or notice," (5) observations made by nontestifying witnesses that were not acts, conditions, or events, (6) forensic opinions and actuarial test conclusions and opinions from non-testifying doctors, and (7) crimes not of moral turpitude committed by Gauwain. Aside from listing these general categories, defense counsel's motion did not otherwise identify specific portions or passages from the reports that constituted multiple hearsay.
Before trial, the issue of the hospital and psychiatric records was again raised by the parties. Defense counsel noted that there was the question of whether the records would contain "multiple hearsay." In particular, defense counsel argued that in Exhibit 3, there was a "very short, one-paragraph summary of Mr. Gauwain's procedural history" that was "unverified and also largely taken from other records." Defense counsel also expressed concern that some of the expert witnesses' testimony might violate People v. Sanchez (2016) 63 Cal.4th 665 .
In response, the prosecutor argued that Exhibit 2 contained "just a list of incidents" that were "pure act[s], condition[s], or event[s]" and was accompanied by an affidavit that would render the documents admissible under Evidence Code section 1271 as a business record. Likewise, the prosecutor argued that Exhibit 3 was also accompanied by a certifying affidavit that would render it admissible. With respect to the particular paragraph on Exhibit 3 challenged by defense counsel, the prosecutor acknowledged that he understood defense counsel's position that the paragraph contained multiple hearsay but that he was not seeking to introduce that paragraph for the truth of the matter asserted. Rather, the prosecutor sought to admit the paragraph under Evidence Code section 356 to provide context for Gauwain's statements or for his conduct as later described.
The trial court thereafter ruled that with respect to the particular paragraph identified by the parties in Exhibit 3, it would not take that paragraph as the truth of the matter asserted but only consider it as "context" and "give it the weight it should have given the discussion we've just had."
2. Forfeiture
Here, defense counsel raised only one specific objection before the court trial- that the paragraph in Exhibit 3 recounting the procedural history of Gauwain's case contained multiple levels of hearsay. The remaining objections were not articulated before the trial court during the hearing but in defense counsel's pretrial motion in limine.
Under Evidence Code section 353, "[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion."
"[A] motion in limine to exclude evidence is a sufficient manifestation of objection to protect the record on appeal when it satisfies the basic requirements of Evidence Code section 353, i.e.: (1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context. When such a motion is made and denied, the issue is preserved for appeal. On the other hand, if a motion in limine does not satisfy each of these requirements, a proper objection satisfying Evidence Code section 353 must be made to preserve the evidentiary issue for appeal." (People v. Morris (1991) 53 Cal.3d 152, 190, italics omitted (Morris), disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
Although "Evidence Code section 353's requirement of a specific objection 'must be interpreted reasonably, not formalistically,'" we do not find Gauwain's motion in limine to be specific enough to fairly inform the trial court of which portions of the exhibits he sought to challenge. (People v. Thompson (2022) 83 Cal.App.5th 69, 101.) On appeal, Gauwain has now identified specific passages in Exhibits 2 and 3 that he finds concerning. But he failed to do so below before the trial court, only broadly articulating in his motion in limine that he believed certain parts of the exhibits contained multiple hearsay. For example, Gauwain now argues on appeal that the wording of some of the passages suggests that the author may not have personally witnessed some of the recorded events. Yet it is not clear how this argument was sufficiently presented to the trial court by Gauwain's motion in limine, which merely targeted for exclusion items such as "[o]bservations by non-testifying witnesses that are not acts, conditions, or events," without specifying that he sought to challenge the pertinent passages in the challenged documents on multiple hearsay grounds.
Notably, Dr. Kittimongcolporn signed several of the reports in People's Exhibit 3, but she was not questioned about the specific contents of her reports when she testified.
Thus, as Gauwain's motion in limine was not "directed to a particular, identifiable" body of evidence, he has forfeited his specific claims on appeal, save for his claim raised in the trial court regarding the paragraph in Exhibit 3 that summarized the procedural history of Gauwain's case. (See Morris, supra, 53 Cal.3d at p. 190.) However, as explained in further detail below, even assuming that Gauwain has preserved his claims, we find no reversible error.
3. Legal Principles and Standard of Review
Gauwain argues that the records that were admitted contained multiple levels of hearsay. Hearsay evidence "is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Hearsay evidence is inadmissible unless an exception applies. (Id., subd. (b).)
Under Evidence Code section 1271, "[e]vidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or even if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness." The party offering the evidence bears the burden to establish that these foundational requirements have been met. (People v. Hovarter (2008) 44 Cal.4th 983, 1011.)
On appeal, "[t]he trial court is vested with broad discretion to determine whether a party has laid a proper foundation for admission of records under [Evidence Code] section 1271, and the court's exercise of that discretion' "will not be disturbed on appeal absent a showing of abuse." '" (People v. McVey (2018) 24 Cal.App.5th 405, 414 (McVey).)
Public records are also admissible as an exception to the hearsay rule as set forth under Evidence Code section 1280. And like business records under Evidence Code section 1271, the trial court has broad discretion to determine whether a party has established the foundational requirements to the public records exception. (Miyamoto v. Department of Motor Vehicles (2009) 176 Cal.App.4th 1210, 1218.) The parties do not argue on appeal that the records were admissible under Evidence Code section 1280.
"Hospital records and similar documents are often admissible as business records, assuming a custodian of records or other duly qualified witness provides proper authentication to meet the foundational requirements of the hearsay exception. [Citation.] Compliance with a subpoena duces tecum may dispense with the need for a live witness to establish the business records exception if the records are produced by the custodian or other qualified witness, together with the affidavit described in [Evidence Code] section 1561." (McVey, supra, 24 Cal.App.5th at p. 414.)
However, even if records are admissible under the business records exception," 'when multiple hearsay is offered, an exception for each level of hearsay must be found in order for the evidence to be admissible. (Evid. Code, § 1201.)'" (People v. Ayers (2005) 125 Cal.App.4th 988, 995 (Ayers).)
4. Analysis
On appeal, Gauwain takes issue with specific portions of Exhibits 2 and 3. First, he argues that certain passages in Exhibits 2 and 3 use language that suggests that the individuals who authored the reports and logs were not percipient witnesses to the events. We acknowledge that there are portions of Exhibit 3 that clearly reflect that the author did not directly witness certain events, such as entries where the author wrote that a "[p]eer reported" that Gauwain was aggressive or that "staff asked the undersigned" about what to do in certain situations involving Gauwain. The portions of Exhibits 2 and 3 that clearly contained hearsay statements made by other witnesses were inadmissible multiple hearsay. (See Ayers, supra, 125 Cal.App.4th at p. 994 [finding that business records that contained hearsay statements made by participants and bystanders were inadmissible].)
Most of the entries in People's Exhibit 2 were written in the third person, with the author writing entries framed as, for example, that "Mr. Gauwain was observed" doing certain acts and that "LOC staff" had to intervene in different ways.
However, to the extent it may have been ambiguous in other portions of the exhibits whether the author directly observed the recorded events, there is no requirement under Evidence Code section 1271 that every entry in a business record expressly state that the records were made by the direct observer. And the trial court here did not exceed the bounds of reason by concluding that an adequate foundation had been laid as to those records based upon the submitted affidavits that accompanied both exhibits. (See Conservatorship of S.A. (2018) 25 Cal.App.5th 438, 448 (S.A.) [finding that psychiatric records were properly admitted even though "not every entry expressly state[d] that the person who recorded it was the direct observer"].)
Gauwain also argues that Exhibit 2's log notes categorize certain observed incidents as "aggressive" with a subcategory of "aggressive act to another patient," which were inadmissible opinions or conclusions. However, the business records exception applies to" 'observed conduct,'" which has been interpreted as a category sufficiently broad enough to permit observations that an individual has engaged in "threatening and aggressive behavior." (S.A., supra, 25 Cal.App.5th at pp. 443, 448.) Accordingly, the trial court did not abuse its discretion by characterizing Gauwain's actions as "aggressive" could have fallen within the purview of a description of conduct.
Gauwain points out that a portion of Exhibit 3 dated September 27, 2019, contained a summary of his background, his commitment offense, and his forced medication orders. Gauwain argues that summaries are not descriptions of acts, conditions, or events, and the passage contains multiple levels of hearsay. Based on the colloquy at trial with the court and counsel, the court specifically admitted that paragraph for only a limited purpose under Evidence Code section 356. However, admission of evidence under Evidence Code section 356 applies only to adverse parties. As the prosecutor was the proponent of the hospital records, the prosecutor was not an adverse party "entitled to inquire into the whole subject under Evidence Code section 356." (People v. Guerra (2006) 37 Cal.4th 1067, 1122, overruled on a different point as stated in People v. Rundle (2008) 43 Cal.4th 76, 151.) The trial court therefore erred in admitting that paragraph on Evidence Code section 356 grounds.
Evidence Code section 356 provides in pertinent part: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; . . . and when a detached act, declaration, conversation or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.""' "In applying Evidence Code section 356 the courts do not draw narrow lines around the exact subject of inquiry. 'In the event a statement admitted in evidence constitutes part of a conversation or correspondence, the opponent is entitled to have placed in evidence all that was said or written by or to the declarant in the course of such conversation or correspondence, provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence.'" '" (People v. Harris (2005) 37 Cal.4th 310, 334-335.)
And finally, Gauwain points out that Exhibit 3 contained summaries of "plan[s]," which Gauwain insists are not admissible under the business records exception.Gauwain also observes that Exhibit 3 contains "opinions" by various authors that Gauwain's behavior, for example, "may agitate more patients" or that he might use something as a weapon, which are not admissible as descriptions of his conduct. We agree that some of this information was not offered to prove an "act, condition, or event" as articulated in Evidence Code section 1271 and was therefore inadmissible. (See Ayers, supra, 125 Cal.App.4th at p. 994.)
The "plan[s]" at issue related to Gauwain's suggested treatment plan, such as observation and medication regimens.
5. Prejudice
Although some portions of the reports contained inadmissible multiple hearsay, made references to certain "plans," and contained opinions that were likewise not within the ambit of Evidence Code section 1271, reversal is required only if it is reasonably probable that Gauwain would have received a more favorable result absent the erroneous admission of the evidence. (See Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1286; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Applying this standard, Gauwain has not demonstrated reversible prejudice.
The inadmissible evidence was largely cumulative of the evidence found admissible at the recommitment proceeding. Three mental health professionals- Dr. Debruin, Dr. Campbell, and Dr. Kittimongcolporn-testified that Gauwain had severe mental health disorders that were not in remission and that he posed a substantial risk of danger to public safety, and Gauwain does not challenge the admissibility of the witnesses' testimony on appeal. Dr. Campbell, who had a face-to-face interview with Gauwain in 2018, described Gauwain's lack of insight and some of Gauwain's delusions, including one where he believed that he had a surrogate child with a staff member, and further stated that at the time of the interview that Gauwain indicated that he did not believe he needed to be medicated and that his commitment offense was fabricated. Likewise, Kittimongcolporn, Gauwain's treating psychiatrist, had met with him multiple times in person and testified that Gauwain would need significant supervision to transition into the community. Kittimongcolporn testified that she could not see anything other than hospital treatment for Gauwain, noting that she had several "intense" conversations with Gauwain about his medication and how he believed that he should not be forced to take them. Kittimongcolporn also provided details of some of Gauwain's procedural history, including his involuntary medication order. Moreover, as to the specific paragraph in Exhibit 3 that the trial court ruled upon, though the paragraph was erroneously admitted under Evidence Code section 356, the trial court expressly stated that it would not consider the paragraph for the truth but only as context.
And finally, there was Gauwain's own testimony at the hearing, where he expressed frustration with hospital staff and his medications, testified that his commitment offenses were conjured against him, and made comments that suggested he was still suffering from hallucinations. Although Gauwain averred that he was comfortable with outpatient treatment programs, the trial court could have reasonably found his testimony to be less than credible given Kittimongcolporn's testimony that Gauwain had frequently complained about his medication and Gauwain's own contrary testimony that he believed that his medications caused undesirable side effects.
Gauwain argues that the experts in this case testified that they reviewed and relied on the hospital and psychiatric records contained in People's Exhibits 2 and 3 when forming their opinions, and if the records are not true, the veracity of the experts' testimony must likewise be questioned. We agree that an expert who testifies at a MDO proceeding cannot "relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (People v. Sanchez, supra, 63 Cal.4th at p. 686; People v. Bona (2017) 15 Cal.App.5th 511, 520 [acknowledging that Sanchez applies to MDO proceedings].) But here, Gauwain does not argue that the experts here violated Sanchez by inappropriately relaying case-specific facts from the reports; his argument is that the experts inappropriately relied on hearsay. We reject this claim: an expert "may still rely on hearsay in forming an opinion and may tell [the trier of fact] in general terms that he [or she] did so." (People v. Sanchez, supra, at p. 685.) And experts are generally permitted to rely on hearsay, including those from hospital records, when forming their opinions. (See People v. Dean (2009) 174 Cal.App.4th 186, 196; People v. Burroughs (2016) 6 Cal.App.5th 378, 407, fn. 7.)
In sum, even if certain portions of the records were inadmissible, a significant body of unchallenged evidence supports the trial court's conclusion that the prosecution had proven beyond a reasonable doubt the elements required under section 2972, subdivision (c)-that Gauwain had a severe mental disorder, the mental disorder was not in remission, and that he posed a substantial danger of physical harm to others. Accordingly, Gauwain does not meet his burden to demonstrate that it is reasonably likely that he would have received a more favorable outcome had portions of the record been excluded. (Watson, supra, 46 Cal.2d at p. 836.)
6. Due Process Right to Cross-Examine Witnesses
Gauwain does not explicitly argue that we should instead assess harmlessness under the more exacting standard articulated in Chapman v. California (1950) 338 U.S. 943 for errors of federal constitutional dimension. But he argues that by admitting multiple hearsay, the trial court violated his due process right to cross-examine witnesses. Because an MDO proceeding is a civil proceeding, the Sixth Amendment right to confrontation does not apply, although" 'such a right does exist under the due process clause.'" (People v. Nelson (2012) 209 Cal.App.4th 698, 712 (Nelson).) But "[t]he Sixth Amendment and due process confrontation rights are not coextensive." (Ibid.) "In civil proceedings,' "[d]ue process requires only that the procedure adopted comport with fundamental principles of fairness and decency. The due process clause of the Fourteenth Amendment does not guarantee to the citizen of a state any particular form or method of procedure." '" (Ibid.)
Although Gauwain did not specifically object to the exhibits on due process grounds below, the California Supreme Court has held in a somewhat analogous context that a defendant may raise for the first time on appeal a claim that a trial court's error in admitting evidence over an Evidence Code section 352 objection had the additional legal consequence of violating due process. (People v. Partida (2005) 37 Cal.4th 428, 435436.) Here, Gauwain's argument is essentially that the trial court's admission of evidence over his objection on multiple hearsay grounds had the additional legal consequence of violating his due process right to confrontation.
Although the Sixth Amendment does not apply in civil proceedings, Sixth Amendment jurisprudence" 'may provide helpful examples in determining the scope of the more limited right of confrontation'" in other situations. (Nelson, supra, 209 Cal.App.4th at p. 712.) In Crawford v. Washington (2004) 541 U.S. 36, the United States Supreme Court held that the Sixth Amendment's confrontation clause prohibited "admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Id. at pp. 53-54, italics added.) And testimonial hearsay are statements that "are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial" that have certain characteristics, such as having "been given and taken primarily for the purpose ascribed to testimony-to establish or prove some past fact for possible use in a criminal trial." (People v. Cage (2007) 40 Cal.4th 965, 984.)
Thus, in Nelson, supra, 209 Cal.App.4th 698, the Fourth District held that interdisciplinary notes written by state hospital staff members that were admitted at a MDO proceeding were not "testimonial in nature"; thus, "the due process right of confrontation [did] not arise" from their admission. (Id. at p. 713.) Nelson observed that "[t]he notes were recorded by hospital staff members for the purpose of discipline and the safety of other patients and staff, and the treatment of [the defendant] required by her conduct. The notes do not suggest staff was concerned with possible future litigation.'" (Ibid.) As in Nelson, the hospital and psychiatric records at issue here were not testimonial in nature; they were created by hospital staff to document Gauwain's mental health and treatment, and to make a record of his conduct for disciplinary and safety purposes. The due process right to confrontation was therefore not implicated by their admission and does not alter our conclusion under Watson, supra, 46 Cal.2d at page 836 that the admission of hearsay was not prejudicial.
III. DISPOSITION
The trial court's order extending Gauwain's commitment as a MDO is affirmed.
WE CONCUR: GREENWOOD, P.J., DANNER, J.