People v. Felious CA2/6

Filed 10/19/22 P. v. Felious CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B318931 (Super. Ct. No. 21PT-00453) Plaintiff and Respondent, (San Luis Obispo County)

v.

JOSEPH FELIOUS,

Defendant and Appellant.

Joseph Felious appeals an order determining him to be an offender with a mental health disorder (OMHD) and recommitting him to the State Department of State Hospitals (Department) for involuntary treatment. (Pen. Code, § 2962 et seq.)1 We conclude that the trial court’s findings rest substantially upon inadmissible hearsay evidence and thus the recommitment order is not supported by sufficient evidence. (People v. Turner (2020) 10 Cal.5th 786, 823; People v. Sanchez

1 All statutory references are to the Penal Code.

1

(2016) 63 Cal.4th 665, 686.) We reverse and remand to permit the People to retry the recommitment petition. FACTUAL AND PROCEDURAL HISTORY In 2009, Felious was convicted of one count of battery with serious bodily injury based upon his assault of a staff member. (§ 243, subd. (d).) In 2011, he was committed to the Department as an OMHD. Since that time, he has been recommitted periodically as an OMHD. On July 19, 2021, the San Luis Obispo County District Attorney filed a petition for continued involuntary treatment pursuant to section 2970. Felious waived his right to a jury trial, and on March 3, 2022, the trial court determined that he met the criteria for continued involuntary treatment as an OMHD. Testimony of Doctor Robin Campbell Doctor Robin Campbell, a forensic consulting psychologist for the Department, testified as the only witness at the recommitment hearing. Campbell was not Felious’s treating psychologist but had interviewed him for 30 minutes nearly three years earlier regarding a previous petition. Campbell based her current opinions upon her review of this documentary evidence pertaining to Felious: legal records, prior forensic reports, recent conduct reports, hospital treatment plan, treatment participation, case notes, progress notes, nursing notes, social worker notes, and prison records. Campbell also consulted with Felious’s treating psychologist and his social worker. None of these documents were presented at trial or admitted into evidence. Felious declined to participate in an interview with Campbell concerning the current petition. Over repeated defense objections regarding lack of foundation and inadmissible hearsay pursuant to Sanchez,