People v. Nelson

• Decision Date: 03 January 2013
• Docket Number: No. D059930.,D059930.
• Citation: People v. Nelson, 209 Cal.App.4th 698, 147 Cal.Rptr.3d 183 (Cal. App. 2013)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Vera NELSON, Defendant and Appellant.

209 Cal.App.4th 698

147 Cal.Rptr.3d 183

The PEOPLE, Plaintiff and Respondent,

v.Vera NELSON, Defendant and Appellant.

No. D059930.

Court of Appeal, Fourth District, Division 1, California.

Aug. 30, 2012.

Review Denied Jan. 3, 2013.

Certified for Partial Publication.^*

See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 763 et seq.

Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, James D. Dutton, Melissa Mandel, Alana Cohen Butler and Sabrina Lane–Erwin, Deputy Attorneys General, for Plaintiff and Respondent.

McCONNELL, P.J.

Vera Nelson appeals an order recommitting her to the Department of Mental Health for one year as a mentally disordered offender (MDO). (Pen.Code, § 2960 et seq.) Nelson contends the trial court erred by (1) admitting the details of hearsay evidence in medical reports on which expert witnesses relied in forming their opinions that by reason of her severe mental disorder she continued to pose a physical threat to others; (2) allowing expert witnesses to instruct the jury on MDO law and usurp the jury's factfinding role; and (3) inadequately instructing the jury. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In 2002 Nelson was living in a care facility for the mentally ill. Nelson and her roommate had been drinking in their room and an argument erupted. Nelson grabbed her roommate and flung her across the room, causing her to hit a dresser and fall. While she was lying on the floor, Nelson beat her and kicked her in the head, yelling “get up bitch.” Several days later the roommate died from a brain injury.

In 2004 the People filed an information charging Nelson with voluntary manslaughter (Pen.Code, § 192, subd. (a); count 1) and battery with serious bodily injury (Pen.Code, § 243, subd. (d); count 2). As to count 2, the information alleged Nelson personally inflicted great bodily injury within the meaning of Penal Code section 1192.7, subdivision (c)(8).

Nelson pleaded guilty to count 1 in exchange for a stipulated three-year prison term and the dismissal of count 2 and the personal infliction allegation. In March 2005 she was committed to Patton State Hospital (Patton) as an MDO, and in 2008, 2009, and 2010 the court issued orders granting the People's petitions for one-year extensions of her commitment.

In November 2010 the People petitioned for an additional one-year extension of Nelson's commitment. A jury trial was held in June 2011. In a motion in limine, the prosecution sought an order allowing it to submit all reliable evidence on which its experts reasonably relied.

The People sought to introduce “Interdisciplinary Notes” made by Patton staff members recording three incidents of Nelson's aggression against other persons during the preceding year. One of the incidents began about 8:50 p.m. on January 2, 2011, and continued to about 1:00 a.m. the next day. Nelson complained to staff that her roommate was playing her radio too loudly. Staff told the roommate to turn the radio down and she complied. Staff left the room, and a few minutes later they heard yells for help. Staff returned and found Nelson choking her roommate. Staff was required to separate Nelson from her roommate. Nelson stated, “that bitch won[']t let me sleep, she turned her radio up again.” Nelson was given medications.

Before long, Nelson attempted to return to her room. When staff attempted to redirect her, she picked up a trash can and threw it at staff, requiring them to activate a safety alarm. When reinforcements arrived, Nelson began swinging at staff with a closed fist. She continued “to fight and struggle,” and she was placed in “5 point restraints for protection of others.” From that point until the incident ended, Nelson continued to “ mistreat” staff and spit at staff. She told staff, “I'm going to fuck you all up, I am going to one by one,” and, “I'm going to get all of you one by one. I'll kill you.”

On the evening of January 4, 2011, Nelson grabbed another patient by her upper arms and threw her to the floor. Approximately 10 minutes later, when staff was counseling Nelson, she ran toward the patient as if to attack her again. Staff grabbed Nelson's shirt to hold her back, but the shirt tore and she grabbed the patient and would not let go. Nelson “began hissing, spitting and kicking at staff.” Staff wrestled Nelson to the floor and placed her in restraints, as she yelled, “I'm going to kill all you bitches,” “I'll let you burn,” “I'll blow your heads off with a shotgun,” and “Keep me in seclusion and I'm going to show you all what's going to happen tomorrow night.” Again, Nelson was medicated.

The third incident occurred on October 12, 2010. A staff member named Dean heard yelling coming from a bathroom. Dean opened the door of the bathroom as Nelson was starting to leave. Dean went to a stall and found a patient sitting on the toilet screaming, “She hit me. Look at my eye.” Dean noted “slight redness and abrasion to right eye of patient.” After some discussion Dean learned the altercation was over a cigarette.

The People argued the Interdisciplinary Notes were admissible under the business records and public records exceptions to the hearsay rule (Evid.Code, §§ 1271, 1280).¹ The People also argued the threats by Nelson to harm or kill staff members were admissible under section 1220, the party admission exception.

Nelson also filed a motion in limine. The motion acknowledged the hearsay in the Incident Notes was “clearly relevant” to the experts' opinions on continued risk of harm. Nelson sought a limiting instruction that the hearsay was not admissible to prove the truth of stated matters.

The court determined a limiting instruction was unwarranted because the Interdisciplinary Notes had a dual purpose. In addition to assisting the experts in forming their opinions, the hearsay was independently admissible to show the truth of the stated matters under section 1280. As to the multiple hearsay in the note on the bathroom incident, the court also found admissibility under section 1240, the spontaneous statement exception to the hearsay rule, and section 1250, the physical condition component of the state-of-mind exception. The court determined the hearsay was trustworthy and reliable because the recording of the bathroom incident was “close enough in time” to its occurrence.

The prosecution presented two expert witnesses, Richard G. Rappaport, M.D., a forensic psychiatrist, and Randy Stotland, Ph.D., a psychologist. Before Dr. Rappaport's testimony, the court admitted the Interdisciplinary Notes into evidence. Dr. Rappaport testified he reviewed the notes and interviewed Nelson to determine whether she met MDO criteria. He explained she continued to suffer from schizophrenia, a psychotic disorder in which the patient is out of touch with reality and characteristically has hallucinations and delusions.

The prosecution had Dr. Rappaport read the Interdisciplinary Notes to the jury. In addition, he testified Nelson volunteered to him during the interview that she “had assaulted two women in recent months.” Dr. Rappaport's report states: “She did acknowledge that she had several episodes of anger, two fights in the past year, one with ... a patient, who she told to get out of her room when the patient was talking to her roommate.” Nelson admitted she hit the patient and knocked her to the floor, and nurses wrote her up for the conduct. She also admitted she “had a fight with another patient ..., a roommate, and accused her of being noisy and talking loud at night, which is the reason for her hitting her.”

Dr. Rappaport testified that while Nelson had improved as to “the symptoms of hallucinations and delusions,” and she was asymptomatic during the interview, she was not in remission as evidenced by “repeated episodes of aggressiveness and violence with other people.” He added that “her behavior is not controllable on her part.”

Dr. Stotland testified he met with Nelson, but she declined an interview. He considered her lack of cooperation a red flag because “when somebody has committed the type of crime she has, ... they need to demonstrate that they are being cooperative, that they are no longer a danger. And by being cooperative with staff and evaluating physicians that's the way you show that you no longer are a danger.”

Dr. Stotland testified he had evaluated Nelson in previous years, and she continued to suffer from paranoid schizophrenia. Based on the Interdisciplinary Notes he believed her conduct was attributable to schizophrenia. Dr. Stotland testified that the January 4, 2011 incident was most distressing because it “is so similar to the original manslaughter. She takes this woman and grabs her and throws her down to the floor, very similar to the original offense, same type of behavior.” Dr. Stotland believed Nelson's illness was not in remission because “she continue [d] to show this instability and the agitation and getting into fights with people and assaulting people.” Thus, in his view Nelson continued to pose a danger of physical harm to others.

Nelson presented no evidence. The parties had stipulated that exhibits may go into the jury room during deliberations, and the court allowed the jury to have exhibits 1 through 7, which are the Interdisciplinary Notes. The jury returned a verdict finding Nelson was an MDO, and the court ordered a one-year extension of her commitment.

DISCUSSION

IMDO Law

“An MDO proceeding is civil, rather than criminal, in nature.” (People v. Fisher (2009) 172 Cal.App.4th 1006, 1013, 91 Cal.Rptr.3d 609.) “The Mentally Disordered Offender Act (MDO Act), enacted in 1985, requires that offenders who have been convicted of violent crimes related to their mental disorders, and who continue to pose a danger to society, receive mental health treatment during and...