People v. Malik

Defendant approached from behind, reached up and grabbed the victim by the mouth with his right hand, and pulled him off of the chair. When the victim fell to a kneeling position on the ground, defendant held a knife to his throat. As the victim described in his testimony, defendant made small side-to-side movements with the knife, cutting his neck "a little bit at a time," while saying: "I'm going to kill you. I'm going to kill you." Defendant also demanded to know "why [the victim] reported his girlfriend to the police." Afraid for his life, the victim said he had money M. gave him to replace the keys to her car. This caused defendant to lower the knife from his throat. When defendant did so, the victim pushed back into defendant with his body to create some separation and then ran towards a car that was parked nearby. Defendant gave chase, repeated that he was going to kill the victim, and stabbed him in the shoulder before he could reach the car. The victim yelled out for help, causing one of his neighbors to come outside to see what was going on. At this point, defendant ended the confrontation with the victim, pointed the knife at the neighbor, and said, "it's personal" as he walked away.

The neighbor called 911. Police and emergency medical personnel arrived within minutes. The victim was transported to the hospital, where he was treated for his injuries. Surgery was performed to explore and repair the wounds. Later in the morning, in response to statements made by the victim

waist up, covered in mud and debris," and "shivering." He said he had been hiding in an irrigation ditch because he "saw the police" and "was sure they were after [him]." Defendant also tried to commit suicide on three occasions.

Dr. Linda Barnard testified as an expert in PTSD. We need not set forth her testimony in detail. For present purposes, we note that based on her review of various police reports and interviews with defendant and his parents, the doctor formed the opinion defendant suffered from PTSD stemming from his experiences in the war and the shooting incident noted above.

Defendant also testified in his own defense. He described his military service, a drug addiction he developed following his discharge, the details of

rights by allowing the prosecutor to cross-examine Dr. Barnard about her review of several police reports. Specifically, he argues the prosecutor related "irrelevant and prejudicial hearsay" to the jury through her questioning of the expert in violation of his due process rights. After the parties submitted their appellate briefing, our Supreme Court decided People v. Sanchez (2016) 63 Cal.4th 665 , 204 Cal.Rptr.3d 102 , 374 P.3d 320 ( Sanchez ), holding: "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay"; and if that hearsay is testimonial, "there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." ( Id . at p. 686, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) We directed the parties to address this new authority in supplemental briefing. Having reviewed the supplemental submissions, we conclude the trial court abused its discretion and violated defendant's confrontation rights by allowing the challenged questioning, but further conclude beyond a reasonable doubt the error was harmless.

A.

Additional Background

During the prosecutor's cross-examination of Dr. Barnard, the doctor was asked to state what she reviewed in making her assessment defendant suffered from PTSD. Among other things, the doctor stated she reviewed a number of police and sheriff's reports from multiple jurisdictions generated between 2001 and 2013. Over objections, the prosecutor was allowed to describe the contents of five of these reports and ask whether the doctor had taken the purported facts contained therein into consideration in forming her conclusions.

Specifically, the prosecutor asked whether the doctor considered a 2001 police report "where [defendant] kicked out a window at a gas station, crawled inside and choked the attendant, hit him over the head with a board, slammed him over the counter, and punched him." After the doctor answered that she considered the contents of that report, the prosecutor asked whether

This changed in Sanchez , supra , 63 Cal.4th 665 , 204 Cal.Rptr.3d 102 , 374 P.3d 320 . There, our Supreme Court rejected the not-admitted-for-its-truth rationale with respect to "case-specific hearsay," i.e., hearsay "relating to the particular events and participants alleged to have been involved in the case being tried" ( id . at p. 676, 204 Cal.Rptr.3d 102 , 374 P.3d 320 ), explaining, "this paradigm is no longer tenable because an expert's testimony regarding the basis for an opinion must be considered for its truth by the jury." ( Id . at p. 679, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) However, the expert may still testify "concerning his [or her] general knowledge, even if technically hearsay," because experts frequently acquire their knowledge from hearsay and this "[k]nowledge in a

case, Dr. Barnard was asked to treat the challenged statements in the police and sheriff's reports as true. Indeed, if they were not true, the statements would have no impeaching value. The statements were then used, not to support, but to undermine her opinion. We conclude

it out,' (3) that the threat-which may be 'made verbally, in writing, or by means of an electronic communication device'-was 'on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." ( People v. Toledo (2001) 26 Cal.4th 221 , 227-228, 109 Cal.Rptr.2d 315 , 26 P.3d 1051 .) While this crime does require a specific intent the threat is to be taken as such, defendant's defense to this crime was not that he lacked the intent to threaten, but that he did not utter the threat at all. Again, resolution of this question did not turn on Dr. Barnard's PTSD diagnosis, but on whether the jury believed the victim or defendant.

Nevertheless, defendant argues the jury likely believed it could use the testimonial hearsay not only to assess Dr. Barnard's PTSD diagnosis, but also to judge defendant's credibility and to conclude he was "a bad or violent person" and therefore more likely to have committed the charged crimes. Regarding the use of prior crimes evidence, the jury was specifically instructed: "Do not consider this evidence for any other purpose except for the limited purpose of determining the defendant's credibility. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime." Because "[w]e presume the jury followed these instructions, and defendant has not rebutted this presumption" ( People v. Alfaro (2007) 41 Cal.4th 1277 , 1326, 63 Cal.Rptr.3d 433 , 163 P.3d 118 ), we must reject his argument the jury improperly used the challenged evidence as character evidence. But the same presumption compels the conclusion the jury did use the evidence to assess defendant's credibility. However, as the Attorney General points out, four of the five prior incidents with law enforcement properly came into evidence by other means. Indeed, defendant was cross-examined concerning each incident with the exception of the 2001 incident. He did not deny any of the events occurred. Nor does he assert this impeachment was improper. (See Evid. Code, § 1101, subd. (c) ; see also People v. Kennedy (2005) 36 Cal.4th 595 , 620, 31 Cal.Rptr.3d 160 , 115 P.3d 472 , disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405 , 459, 111 Cal.Rptr.3d 589 , 233 P.3d 1000 .) Thus, the details of four of the five incidents properly made their way before the jury for purposes of impeaching defendant's testimony. We conclude that hearing about these four

at the hospital identifying defendant only by his first name, police responded to the motel where defendant was living. When an unidentified individual walked past, one of the officers yelled: "Hey, Adam." That person did not turn around. Defendant, however, opened the door to his room and said: "Did somebody call out Adam?" Defendant was taken into custody. He became agitated when asked to lift up his shirt to be photographed, but complied, and was otherwise calm and cooperative. Aside from a superficial scratch on his back, defendant had no recent injuries. In an alley behind defendant's motel, police found several items of wet clothing beneath the bathroom window of defendant's room. The room was also searched, but nothing of evidentiary value was recovered.

Defense Case

As mentioned, in addition to the counts of conviction, defendant was charged with attempted murder. The defense case sought to establish defendant acted in self-defense when he stabbed the victim, had no intent to kill, and he suffered from PTSD from his prior military service in the Iraq War, a condition that became worse after an incident in 2012 in which defendant was shot while evading a sheriff's deputy.

Defendant's parents testified concerning their observations of changes in defendant's behavior following the war, such as being "nervous," "quicker to react to situations," and "vigilant about who and what was around him." After the shooting incident, defendant became "paranoid" and "fearful for his life." As his mother described: "He had panic attacks, nightmares, couldn't sleep. He became very depressed and easily upset, as compared to before." He was living with his parents at the time and would periodically climb onto the roof because he believed police or others were looking for him. On one occasion, defendant stayed out all night. When his mother called to find out where he was, defendant asked her whether the police were there and would not accept her assurance they were not. He came home several hours later "half naked from the

DISCUSSION

Evidentiary Claim

Defendant claims the trial court abused its discretion and violated his federal constitutional

she also considered a 2003 sheriff's report indicating defendant "knocked someone unconscious" and "broke another person's jaw" during a fight in a bar because "he was upset that the [bartender] wouldn't serve him," stating to the bartender, "Don't you know where I've been?" The doctor acknowledged she read that report and also acknowledged that "on [the] surface" such an incident was "consistent with anger or pride as [o]pposed to a PTSD episode."

The prosecutor then asked whether Dr. Barnard reviewed a 2006 sheriff's report regarding a domestic violence incident in which defendant "threatened his wife with a gun, threw [her to] the ground, pointed the gun at her, and then had a 15-minute standoff with officers." The doctor acknowledged she reviewed and considered the facts contained in this report. In response to further questioning, she stated they "could be" consistent with a PTSD episode, but also acknowledged defendant was able to control his actions to the extent he did not "beat his wife" or "kill any officers." The prosecutor further asked the doctor whether she reviewed a 2012 police report stating, "defendant was screaming at a bar, punched a manager in the face, and then ran from officers" while yelling, "Fucking taser me, you fucking pigs" and "Fuck you. I'm a marine. Come get me, mother fuckers." The doctor acknowledged reviewing the report and agreed the facts

addition to contemporaneous objections, defense counsel moved for a mistrial following the prosecutor's cross-examination, which was denied.

Thereafter, the jury was instructed with CALCRIM No. 360 as follows: "Dr. Barnard testified that in reaching her conclusions as an expert witness, she considered statements made by the defendant and his parents and statements contained in documents. You may consider those statements only to evaluate the expert's opinion. Do not consider those statements as proof that the information contained in the statements is true."

B.

Analysis

"Until very recently, the law governing expert witnesses' reliance on hearsay-and the latitude given them to testify about such hearsay-seemed fairly well settled. For instance, in [ People v. Gardeley (1996) 14 Cal.4th 605 , 59 Cal.Rptr.2d 356 , 927 P.2d 713 ( Gardeley ) ], our Supreme Court held a gang expert could testify to out-of-court statements he [or she] had heard from fellow officers and gang members, including a co-participant in the crimes with which the defendants were charged, relating to the gang's activities [citation], and upon that basis could opine that the crime with which defendants were charged was a ' "classic" example of gang-related activity' [citation]. The court relied upon the following rule: 'because Evidence Code section 802 allows an expert witness to "state on direct examination the reasons for his [or her] 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.' [Citation.] In such a case, so the theory goes, the gang members' statements are not admitted for their truth, but only as basis evidence for the expert's opinion. [Citation.] This was not a new development in Gardeley ; California had long followed this not-admitted-for-its-truth rule. [Citations.]" ( People v. Stamps (2016) 3 Cal.App.5th 988 , 993, 207 Cal.Rptr.3d 828 .)

specialized area is what differentiates the expert from a lay witness, and makes his [or her] testimony uniquely valuable to the jury in explaining matters 'beyond the common experience of an ordinary juror.' [Citations.]" ( Id . at p. 676, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) Thus, as at common law, the court drew a "distinction between generally accepted background information and the supplying of case-specific facts," providing the following as an example of the difference: "That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify." ( Id . at p. 677, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) The court specifically held: "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." ( Id . at p. 686, 204 Cal.Rptr.3d 102 , 374 P.3d 320 fn.omitted.)

Here, we do not have a situation in which a prosecution expert witness related case-specific hearsay to the jury and treated those hearsay statements as true to support her opinion. Instead, the prosecutor related the case-specific hearsay, through cross-examination of the defense expert , and asked whether she considered that information in forming her conclusion defendant suffered from PTSD. In other words, the case-specific hearsay was being used to impeach the expert's testimony. Generally, "a witness testifying as an expert ... may be fully cross-examined as to ... the matter upon which his or her opinion is based and the reasons for his or her opinion." ( Evid. Code, § 721, subd. (a).) "The scope of cross-examination of an expert witness is especially broad. [Citation.] Evidence that is inadmissible on direct examination may be used to test an expert's credibility, though the court must exercise its discretion under Evidence Code section 352 to limit the evidence to its proper uses." ( People v. Gonzales (2011) 51 Cal.4th 894 , 923, 126 Cal.Rptr.3d 1 , 253 P.3d 185 .)

However, we have found no authority standing for the proposition that the breadth of permissible cross-examination extends to the admission of case-specific testimonial hearsay in violation of a defendant's right of confrontation. While this case arguably represents the flipside of Sanchez, supra, 63 Cal.4th 665 , 204 Cal.Rptr.3d 102 , 374 P.3d 320 , as in that

the reasoning of Sanchez applies equally in these circumstances. The Attorney General does not argue otherwise. Nor does the Attorney General dispute the challenged statements are both case-specific and testimonial. The statements are case-specific, as that term is defined in Sanchez , because they relate to whether defendant suffered from PTSD at the time he threatened and stabbed the victim. They are testimonial because, as in Sanchez , the reports "were compiled during police investigation of these completed crimes" and Dr. Barnard treated as true "these case-specific facts from a narrative authored by an investigating officer." ( Sanchez , supra , 63 Cal.4th at p. 694, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .) And because there was no showing of unavailability or that defendant had a prior opportunity for cross-examination or forfeited that right by wrongdoing, we must conclude admission of the testimonial hearsay violated defendant's right of confrontation. ( Id . at p. 686, 204 Cal.Rptr.3d 102 , 374 P.3d 320 .)

We now turn to the question of prejudice and conclude the violation was harmless beyond a reasonable doubt. (See People v. Capistrano (2014) 59 Cal.4th 830 , 874, 176 Cal.Rptr.3d 27 , 331 P.3d 201 [confrontation violation judged by harmless beyond reasonable doubt standard of prejudice].) We first note defendant was acquitted of both attempted murder and the lesser included offense of attempted voluntary manslaughter. He was convicted of assault with a deadly weapon and making a criminal threat. An assault conviction requires proof the defendant did (1) "an intentional act" with (2) "actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." ( People v. Williams (2001) 26 Cal.4th 779 , 790, 111 Cal.Rptr.2d 114 , 29 P.3d 197 .) There was no dispute that if an assault occurred, it was done with a deadly weapon, i.e., a knife. Nor was there any dispute defendant intentionally stabbed the victim with that knife. His defense was that he did so in self-defense. Thus, Dr. Barnard's testimony was not directly relevant to defendant's culpability for this crime. As the jury was properly instructed, her testimony that defendant suffered from PTSD could be considered "only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted with the intent or mental state required for that crime." Here, where both the act and requisite mental state were essentially conceded, the only question for the jury to resolve was whether a reasonable person in defendant's position would have believed he needed to hold a knife to the victim's neck and then stab him in the shoulder in order to defend himself from the victim. Because self-defense is judged by an objective standard, resolution of this question turned not on whether defendant suffered from PTSD, but whether the jury believed the victim's account of events or that provided by defendant. Nowhere in the instructions was the jury informed a PTSD diagnosis was relevant to the question of credibility one way or the other.

Turning to the criminal threat conviction, the elements of this crime are: "(1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying

incidents an additional time, and in a much more condensed manner, during Dr. Barnard's testimony would not have made any difference in the jury's assessment of defendant's credibility.

We are left with the 2001 incident, "where [defendant] kicked out a window at a gas station, crawled inside and choked the attendant, hit him over the head with a board, slammed him over the counter, and punched him." In light of the other incidents, we cannot conclude this incident would have swayed the jury to disbelieve defendant. While undeniably violent, it was not any more violent than the other four. And, as already explained, the jury was specifically instructed it could not use this or any of the incidents to conclude defendant was disposed to commit crime. We also note the jury apparently credited defendant's testimony, at least to the extent of finding there to be a reasonable doubt as to whether he intended to kill the victim. What the jury did not believe was defendant's testimony he did not utter a