People v. Bona

As a condition of his parole, Thomas D. Bona was committed to the State Department of Hospitals for treatment as a mentally disordered offender (MDO) ( Pen. Code,^[1] § 2962 ). The trial court ordered the commitment after it denied Bona's petition challenging the Board of Parole

Hearings' (BPH) determination that he met the MDO criteria. (§ 2966, subd. (b), hereinafter § 2966(b).) Bona appeals, contending that (1) the court abused its discretion in continuing the hearing on his petition beyond the 60-day period set forth in section 2966(b); and (2) his trial attorney provided ineffective assistance of counsel by failing to (a) seek writ review from the orders granting the continuances, and (b) raise a Sanchez^[2] objection to case-specific hearsay expert testimony offered at the hearing.

We conclude that the 60-day timeline set forth in section 2966(b) is directory rather than mandatory and that Bona was not prejudiced by the continuance of his hearing a week beyond that timeline. We also reject Bona's claims of ineffective assistance of counsel. His first claim is forfeited and in any event fails for lack of prejudice. Although Sanchez applies in MDO proceedings to the extent it clarifies the admissibility of expert testimony under the Evidence Code, Bona fails to show that his attorney could have had no legitimate tactical reason for declining to make a Sanchez objection here. He also fails to show it is reasonably probable that such an objection would have led to a more favorable result. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

Bona was convicted of elder abuse (§ 368, subd. (b)(1)) and sentenced to four years in state prison. In February 2016, the BPH determined that Bona met the MDO criteria and sustained the requirement of treatment as a condition of his parole. Bona petitioned for the appointment of counsel and a hearing (§ 2966(b)) and waived his right to a jury.

Psychologist Meghan Brannick testified as the prosecution's expert at the hearing. Dr. Brannick interviewed Bona, reviewed his medical records and legal history, and spoke to his treating psychologist and psychiatrist.

could not recall what he had done. He exhibited multiple psychotic symptoms during the months preceding the BPH hearing and required an involuntary medication order.

Dr. Brannick also opined that Bona represented a substantial danger of physical harm to others by reason of his mental disorder. The doctor noted Bona's history of violent behavior when he is symptomatic, a prior incident when he discharged a firearm while he was not taking his medication, two prison rules violations that were related to his mental disorder, his lack of an acceptable discharge plan, and his lack of insight into his disorder.

Chico Police Sergeant Scott Harris testified regarding the facts of Bona's commitment offense. On August 27, 2012, Sergeant Harris responded to a report of an assault at a store. The sergeant spoke with the victim, who had a laceration under one of his eyes and a bruised nose. The victim subsequently identified Bona as his assailant. Bona told Sergeant Harris that he went to the store to buy a CD and that he recalled "punching" a CD rather than a person.

DISCUSSION

Continuances

Over Bona's objection, the trial court continued his MDO hearing one day beyond the 60-day period set forth in section 2966(b).^[3] The court subsequently granted an additional six-day continuance. The prosecutor purported to show good cause for the continuances by offering that she needed the additional time to present Sergeant Harris's testimony regarding the facts of Bona's commitment offense, as contemplated in People v. Stevens (2015) 62 Cal.4th 325 , 195 Cal.Rptr.3d 762 , 362 P.3d 408 ( Stevens ).^[4] Bona contends that both continuances were an abuse of discretion. In a supplemental brief, he further contends that his trial counsel provided

Bona's ineffective assistance claim is forfeited because it was not raised in the opening brief. ( People v. Rangel (2016) 62 Cal.4th 1192 , 1218-1219, 200 Cal.Rptr.3d 265 , 367 P.3d 649 .) In any event, the claim lacks merit.

"When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel's inadequacy. To satisfy this burden, the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." ( People v. Hung Thanh Mai (2013) 57 Cal.4th 986 , 1009, 161 Cal.Rptr.3d 1 , 305 P.3d 1175 ( Hung Thanh Mai ).)

"[I]t is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]" ( Hung Thanh Mai , supra , 57 Cal.4th at p. 1009, 161 Cal.Rptr.3d 1 , 305 P.3d 1175 .)

Bona's claim of ineffective assistance is based on the premise that the standard of review would have been more favorable to him-i.e., no showing of prejudice would have been necessary-had counsel sought pretrial writ relief from the challenged continuances. The case he offers as support for this premise analogizes the "speedy trial" rights of a minor who is the subject of a wardship petition under Welfare and Institutions Code section 601 or 602 with a criminal defendant's statutory right to a speedy trial under section 1382. ( In re Chuong D. (2006) 135 Cal.App.4th 1303 , 1309-1310, 38 Cal.Rptr.3d 351 ( Chuong D. ))^[5]

An analogy to section 1382 is inapt here. That section states that a felony case "shall ... be dismissed" when the defendant has not been brought to

whether trial counsel's failure to object to the evidence amounts to constitutionally ineffective assistance. As we have noted, "it is particularly difficult to prevail on an appellate claim of ineffective assistance." ( Hung Thanh Mai , supra , 57 Cal.4th at p. 1009, 161 Cal.Rptr.3d 1 , 305 P.3d 1175 , italics omitted.) Deficient performance cannot be established on direct appeal unless "(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." ( Ibid. ) Bona must also overcome the "presumption [that] counsel acted within the wide range of reasonable professional assistance." ( Ibid. ; see also People v. Castaneda (2011) 51 Cal.4th 1292 , 1335, 127 Cal.Rptr.3d 200 , 254 P.3d 249 ["The decision whether to object to the admission of evidence is 'inherently tactical,' and a failure to object will rarely reflect deficient performance by counsel"]; People v. Riel (2000) 22 Cal.4th 1153 , 1185, 96 Cal.Rptr.2d 1 , 998 P.2d 969 [" 'Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight [.] A reviewing court will not second-guess trial counsel's reasonable tactical decisions' "].) Finally, he must show it is reasonably probable that he would have achieved a more favorable result had counsel raised a Sanchez objection. ( Hung Thanh Mai , at p. 1009, 161 Cal.Rptr.3d 1 , 305 P.3d 1175 .)

Bona fails to establish either prong of his ineffective assistance of counsel claim. He merely speculates that counsel was unaware of the Sanchez decision.^[7]

Counsel may also have reasonably concluded that Dr. Brannick's testimony regarding the MDO criteria was less damaging to Bona than the detailed account that would have resulted had counsel raised Sanchez objections. Moreover, some of the statements Bona identifies as inadmissible hearsay were based at least in part upon Dr. Brannick's personal observations of Bona when she interviewed him, or upon information he conveyed to her during that interview.^[9] In addition, one of the doctor's challenged statements-in which she conveyed Bona's statement to the police that he "had only punched a CD"-was cumulative of other properly-admitted evidence. In light of these considerations, there is no basis for us to conclude this is one of those "rare" cases in which counsel's failure to object amounts to constitutionally deficient performance. ( Hung Thanh Mai , supra , 57 Cal.4th at p. 1009, 161 Cal.Rptr.3d 1 , 305 P.3d 1175 ; People v. Castaneda , supra , 51 Cal.4th at p. 1335, 127 Cal.Rptr.3d 200 , 254 P.3d 249 ; People v. Riel , supra , 22 Cal.4th at p. 1185, 96 Cal.Rptr.2d 1 , 998 P.2d 969 .)

Bona also fails to demonstrate the requisite prejudice. In purporting to make this showing, he offers that had counsel objected "the state would not have been able to prove its case-at least not with the evidence available at this trial." He goes on to acknowledge that if counsel had raised a Sanchez objection "there might have been a way that the government could have presented some of the inadmissible case-specific hearsay in an admissible fashion." Indeed, exclusion of the challenged evidence would not have precluded Dr. Brannick from stating the opinions upon which that evidence was based. As Sanchez makes clear, "[a]ny expert may still rely on hearsay in forming an opinion, and may tell the [trier of fact] in general terms that he did so." (

memory of a potential witness has faded." ( People v. Lowe (2007) 40 Cal.4th 937 , 946, 56 Cal.Rptr.3d 209 , 154 P.3d 358 , fn. omitted.)

As the People correctly note, "[a]ppellant has not even tried to establish that any of these considerations were present here." He cannot establish that he suffered any prejudice as a result of the one-day continuance because he had previously waived time to that date. Moreover, the combined continuances were relatively brief and the hearing was completed well within his initial one-year period of parole. Bona "does not claim surprise as to the content of [Sergeant Harris's] testimony, or suggest that his ability to counter that evidence was somehow diminished because of the additional brief delay in the hearing." ( Chuong D. , supra , 135 Cal.App.4th at p. 1312, 38 Cal.Rptr.3d 351 , fn. omitted.) Because Bona fails to demonstrate that he suffered prejudice due to the brief delay in completing his hearing, his claim fails regardless of whether there was good cause for the delay. ( People v. Fernandez , supra , 70 Cal.App.4th at p. 131, 82 Cal.Rptr.2d 469 .)^[6]

Sanchez

Bona contends his trial counsel provided ineffective assistance by failing to object when Dr. Brannick testified to case-specific hearsay. He asserts that this evidence was inadmissible under Sanchez, supra, 63 Cal.4th 665 , 204 Cal.Rptr.3d 102 , 374 P.3d 320 , which was decided less than two months prior to his trial. Bona claims "it is readily apparent from the record in this case" that as of the date of his trial Sanchez " had not yet worked its way down to the San Luis Obispo Superior Court-at least in [MDO] cases." Alternatively assuming that his trial attorney was aware of Sanchez , Bona asserts that counsel could have had "no valid tactical

Moreover, on the record before us, there is no basis to conclude that counsel could have had no legitimate tactical reason for failing to raise a Sanchez objection to Dr. Brannick's testimony. The People posit that "counsel strategically chose only to challenge the sufficiency of the evidence as to whether [Bona] suffered a qualifying conviction. In support of this argument, counsel utilized the prosecution's evidence to show that the criterion was not met because the evidence did not establish that [Bona] caused the injuries the victim suffered." Defense counsel also exploited one of Dr. Brannick's hearsay statements to Bona's advantage during cross-examination.^[8]

Sanchez , supra , 63 Cal.4th at p. 685, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .)^[10] It is also clear from Dr. Brannick's testimony that most of her opinions were based at least in part on her observations of Bona and the information directly conveyed to her. Because it is not reasonably probable that a Sanchez objection would have led to a more favorable result, Bona's claim of ineffective assistance of counsel fails. ( Hung Thanh Mai , supra , 57 Cal.4th at p. 1009, 161 Cal.Rptr.3d 1 , 305 P.3d 1175 .)