Opinion
2d Crim. No. B230766
10-19-2011
THE PEOPLE, Plaintiff and Respondent, v. JEREMY FOSTER, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. F454357)
(San Luis Obispo County)
Jeremy Foster appeals from an order of the trial court committing him to the Department of Mental Health (DMH) for treatment as a mentally disordered offender (MDO). (Pen. Code, § 2960 et seq.) Appellant contends that he did not receive 90 days of treatment in the year preceding his parole release date, as required by the MDO statute. (§ 2962, subd. (c).) We affirm.
All further statutory references are to the Penal Code.
FACTS
Commitment Offense
Appellant was diagnosed as suffering from schizophrenia, undifferentiated type. He has a history of auditory hallucinations and delusions. He believes he is being targeted by the FBI and that he is a government official or law enforcement officer. His thoughts are disorganized, as demonstrated by incoherent, disjointed and illogical speech. He has a flat affect, behaves impulsively and exhibits poor hygiene.
The commitment offense occurred when appellant entered a convenience store and grabbed several items behind the counter. He pushed a clerk, grabbed more items and tried to leave. He told the clerk that he was "the police" and could go anywhere he wanted. Appellant was disheveled and wore a white t-shirt on his shoes. He was found incompetent to stand trial, but was later convicted of grand theft.
MDO Trial
On September 2, 2010, the Board of Prison Terms certified that appellant met the MDO criteria. He petitioned for a review of this certification pursuant to section 2966 and waived his right to a jury trial. At trial, the parties stipulated to the qualifications of Doctor Kevin Perry, however the record does not identify those qualifications. Dr. Perry testified that he met appellant in December 2010 to prepare a report and offer an opinion as to whether he qualified as an MDO. He diagnosed him as suffering from schizophrenia.
Dr. Perry concluded that appellant met the statutory criteria to qualify him as an MDO. In reaching this determination, Dr. Perry relied upon previous section 2962 evaluation by Doctor Simonet, reviewed appellant's medical records at ASH and spoke with his treatment team members. None of the foregoing documents are included in the record on appeal.
Dr. Perry testified that appellant first received treatment for a severe mental disorder in 1998 through a county mental health program in Kern and had five prior admissions. He stated that appellant had received a total of 95 days of treatment in the year prior to his parole date of September 14, 2010. Dr. Perry calculated this as follows: one year earlier (September 14-17, 2009) appellant received 4 days of treatment at ASH and was released. The following year, appellant violated parole on June 15, 2010, was incarcerated, and received treatment from that date until September 14, 2010, when he was paroled and readmitted to ASH.
Dr. Perry acknowledged that he was uncertain that appellant had actually received treatment during the four days he spent at ASH in September 2009. He based his conclusion of 91 days of treatment on the report of Dr. Simonet, which stated, "'the inmate returned to CDCR on 6-15-10.'" Dr. Perry testified that, based upon Dr. Simonet's report, appellant was "returned to the mental health services delivery system" on June 15, 2010, so would have received mental health services beginning on that date.
After hearing the testimony, the trial court found beyond a reasonable doubt that appellant was in the California Department of Corrections from June 15 to September 14, 2010 and received 91 days of treatment during that time. It chose not to consider the four days of treatment appellant received at ASH in September 2009. The petition was denied and appellant was recommitted to ASH.
DISCUSSION
Appellant contends the evidence is insufficient to support the finding that he received 90 days of treatment for his disorder within the year prior to his parole date. We disagree.
In order to qualify an MDO for commitment, the trial court must make a finding that the prisoner meets six statutory criteria. (§ 2962, subds. (a)-(d)(1).) Among them is a finding that "[t]he prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to the prisoner's parole or release." (Id., subd. (c); People v. Martin (2005) 127 Cal.App.4th 970, 975; People v. Del Valle (2002) 100 Cal.App.4th 88, 93.)
In reviewing the sufficiency of evidence to support an order made in MDO proceedings, we review the entire record to determine if reasonable and credible evidence supports the decision of the trier of fact. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083.) We view the evidence and draw all reasonable inferences in favor of the order. (Ibid.)
Appellant claims that Dr. Perry improperly relied upon Dr. Simonet's evaluation in forming his opinion that appellant had received 90 days of treatment. He is in error because a qualified expert is entitled to render an opinion on information that is itself inadmissible hearsay if the information is reliable and of the type reasonably relied upon by experts on the subject. (People v. Gardeley (1996) 14 Cal.4th 605, 618.) A qualified mental health professional may rely on underlying reports to render an opinion as to whether an individual qualifies as an MDO. (People v. Martin, supra, 127 Cal.App.4th at p. 976; People v. Miller (1994) 25 Cal.App.4th 913, 917; People v. Valdez (2001) 89 Cal.App.4th 1013, 1017.) At the outset of the trial, the parties stipulated to Dr. Perry's qualifications. He was therefore entitled to rely on Dr. Simonet's report in rendering his opinion.
Appellant raises a second argument that he received treatment for only 74 days. He bases this upon the fact that Dr. Simonet issued his report on August 23, 2010. Appellant argues that he only received treatment from June 15, the date of his incarceration to August 23, the date of the writing of Simonet's report. We reject this argument because there was no evidence that appellant's treatment was discontinued after the report was issued. Viewing all the evidence in favor of the order, we conclude that it was supported by substantial evidence.
DISPOSITION
The judgment (order of commitment) is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
GILBERT, P.J.
YEGAN, J.
Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent.