People v. Malik
People v. Malik
Opinion of the Court
*590Defendant Adam Akhtar Malik was convicted by jury of assault with a deadly weapon (Count 2) and making a criminal threat (Count 3).
*438On appeal, defendant contends: (1) the trial court abused its discretion and violated his federal constitutional rights by allowing the prosecutor to cross-examine his expert witness, a psychologist who testified defendant suffered from post-traumatic stress disorder (PTSD), concerning her review of several police reports; and (2) the trial court violated Penal Code
We affirm. As we shall explain, while we conclude the trial court abused its discretion and violated defendant's confrontation rights by allowing the prosecutor to relate case-specific testimonial hearsay from the police reports to the jury during her cross-examination of the defense expert, the error was harmless. We reject defendant's claim the trial court was required to stay execution of sentence on the criminal threats conviction under section 654.
FACTS
In October 2014, defendant lived at a Motel in West Sacramento. R.W. lived in a trailer with her boyfriend, the victim, about half a mile away. An elderly woman we shall refer to as M. also lived in a trailer nearby. M. suffered from dementia and was nearly blind. R.W. and the victim were helping her with running various errands. There was also evidence, presented by the defense, they were stealing money from M.'s bank account while doing so. According to defendant's testimony, he first met R.W. and the victim at a party, where he overheard the former bragging about stealing from M. Defendant became disgusted and left the party. Later, after speaking to M. alone and accompanying her to the bank, where he obtained various account documents, defendant reported his suspicions to his probation officer. The probation officer confirmed this conversation with defendant took place.
*591The Stabbing and Threats
About one week later, defendant's girlfriend borrowed one of M.'s cars. She never returned it. According to defendant's testimony, his girlfriend also knew M. and borrowed the car on defendant's behalf because his Jeep had been in a collision and he needed transportation while it was being repaired. At some point, defendant and his girlfriend drove the car to Thunder Valley Casino, where the ignition key became detached from its plastic bow and was lost. Unable to start the car, they left it in the parking lot, retaining the keyless entry remote control (key fob). Sometime later, according to the victim's testimony, M. asked him to find and retrieve the car for her, which he did. While no one reported the car stolen, defendant believed R.W. and the victim had retrieved it in retaliation for him "screwing with their meal ticket." About one week after the car was borrowed, defendant spoke to his probation officer about the situation. The officer gave him some obvious advice: have the person who borrowed the car-defendant did not tell the officer it was his girlfriend who did so-return the key fob.
Rather than follow his probation officer's advice, defendant went to R.W.'s trailer at around 2:00 a.m. the following day and confronted the victim. The victim was standing on a chair outside the trailer, either knocking on a window or trying to open it with a screwdriver or putty knife.
*439Defendant 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 *592at 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 *440waist 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 *593the 2012 shooting incident, and his suicide attempts. He then described meeting the victim and R.W., his discovery of their financial abuse of M.,
Defendant testified he was somewhat apprehensive about interacting with the victim because he heard the victim discovered he was helping M. and threatened to "handle" him. According to defendant's testimony, when he arrived at the trailer, the victim was standing on a small ladder with a screwdriver or putty knife in his hand. When defendant asked where M. was, the victim stepped down from the ladder and "made a gesture ... like he's somebody [to be] reckoned with." Defendant reacted to what he perceived to be a threat, grabbed the hand that was holding the screwdriver/putty knife, and then put his other hand in the victim's mouth, a maneuver he referred to as a "fishhook." Turning the victim around by the mouth, defendant pulled out a pocket knife and held it to his throat, ordering him to "[t]ake a knee." The victim dropped the screwdriver/putty knife and complied. Defendant then released the victim and started to walk away from the confrontation, at which point the victim reached for the instrument he had just dropped and defendant stabbed him in the shoulder to prevent him from doing so. Defendant ran back to his motel room, where he "started freaking out," removed his shoes and clothes, rinsed them off in the sink "to get rid of any blood or anything that was on there," threw them out the window, and then showered and shaved.
According to defendant's testimony, he did not intend to kill the victim. As defendant explained, he "could have cut [the victim's] whole head off if [he] wanted to," but "because [the victim] was cooperating and [defendant] wasn't there to hurt him," the altercation would have ended had the victim not tried to pick up the screwdriver/putty knife, adding, "he shouldn't have done that." Defendant also denied making any threats against the victim's life.
*594DISCUSSION
I
Evidentiary Claim
Defendant claims the trial court abused its discretion and violated his federal constitutional *441rights 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)
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 *595she 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 *442indicated defendant was aware of his surroundings and "[p]robably not" in a PTSD-induced flashback.
Finally, the prosecutor asked the doctor concerning her review of the police report generated following the 2012 shooting incident she concluded contributed to defendant's PTSD, specifically whether she considered "what had happened before he was shot," i.e., "he had brandished a gun at patrons at a bar," "sped 80 miles an hour away from officers into oncoming traffic trying to get away," and "after he stopped, he reversed his vehicle and tried to run over an officer." The doctor acknowledged reviewing that report and using it in evaluating whether defendant suffered from PTSD.
The trial court allowed these questions to be asked in this fashion "because these are reports that [the doctor] reviewed to come to her diagnosis and she could be tested to find out how any of those things affected her diagnosis." In *596addition 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)
*443This changed in Sanchez , supra ,
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)
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,
We now turn to the question of prejudice and conclude the violation was harmless beyond a reasonable doubt. (See People v. Capistrano (2014)
*599Turning 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 *445it 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)
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)
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 *446criminal threat. Nor did the jury believe a reasonable person in defendant's position would have concluded he needed to assault the victim with a knife in order to defend himself. Based on all of the evidence, we conclude beyond a reasonable doubt this over-a-decade-old incident in which defendant assaulted a service station attendant would not have made a difference in the jury's resolution of these issues.
II
Section 654
DISPOSITION
The judgment is affirmed.
We concur:
BLEASE, Acting P.J.
HULL, J.
The jury found defendant not guilty of attempted murder (Count 1) and the lesser included offense of attempted voluntary manslaughter.
These charges also served as the basis for a petition to revoke the probation defendant had been granted in a separate case. The petition was granted and defendant was sentenced to serve a concurrent term of two years four months in that matter.
Undesignated statutory references are to the Penal Code.
R.W. was not home to let the victim inside the trailer.
As mentioned, the defense presented evidence R.W. and the victim were in fact stealing from M.
The Attorney General addresses an additional "road rage incident" that was described in defendant's medical records. However, the prosecutor's questioning of Dr. Barnard regarding this incident was not challenged in defendant's opening brief and any contention the trial court erred in allowing such questioning is therefore forfeited. (See People v. Roscoe (2008)
See footnote *, ante.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.