Opinion
No. E051465.
2011-12-23
Kelvin HARRISON, Plaintiff and Appellant, v. BOARD OF PAROLE HEARINGS, Defendant and Respondent;The People, Real Party in Interest.
Ronald R. Boyer, under appointment by the Court of Appeal, for Plaintiff and Appellant. No appearance for Defendant and Respondent.
Background: Parolee petitioned for a hearing on whether he was a mentally disordered offender (MDO). The Superior Court, San Bernardino County, No. FELSS1001624, Katrina West, J., ordered parolee committed as MDO after bench trial. Parolee appealed.
Holdings: The Court of Appeal, Richli, J., held that:
(1) insufficient evidence supported finding that chief psychiatrist certified that parolee met MDO criteria;
(2) insufficient evidence supported findings as to the identities of parolee's evaluators;
(3) insufficient evidence supported finding that evaluators found parolee met MDO criteria; and
(4) MDO evaluation and certification requirements are substantive elements that the People must prove.
Reversed with directions. Ronald R. Boyer, under appointment by the Court of Appeal, for Plaintiff and Appellant. No appearance for Defendant and Respondent. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Quisteen S. Shum, Deputy Attorneys General, for Real Party in Interest.
OPINION
RICHLI, J.
The Board of Parole Hearings (BPH) determined that appellant Kelvin Harrison was a mentally disordered offender (MDO) and therefore subject to treatment as a condition of parole. (Pen.Code, § 2962.) Appellant filed a petition in superior court challenging this determination. (Pen.Code, § 2966, subd. (b).) After a hearing lasting a total of about two hours, at which one witness (an expert) testified for the People, one witness (appellant himself) testified for appellant, and neither side introduced any exhibits, the trial court found that appellant was indeed an MDO.
In this appeal, appellant contends:
1. There was insufficient evidence that:
a. Appellant had been imprisoned for an qualifying offense. (Pen.Code, § 2962, subd. (e).)
b. Appellant had been in treatment for at least 90 days within the year prior to his parole or release date. (Pen.Code, § 2962, subd. (c).)
c. Appellant had received the required evaluation and certification. (Pen.Code, § 2962, subd. (d).)
2. The trial court did not make all of the necessary factual findings.
3. The trial court erroneously ordered appellant committed for a year, rather than ordering that he be subject to treatment as a condition of parole.
In the unpublished portion of this opinion, we will hold that there was sufficient evidence that appellant had been imprisoned for a qualifying offense and that he had been in treatment for 90 days within the year prior to his parole or release date. This evidence included the testimony of the expert, even though that testimony was based on hearsay, because appellant did not object. In the published portion of this opinion, however, we will hold that even when the expert's testimony is considered, there was insufficient evidence that appellant had been evaluated by two qualified evaluators, that the evaluators had made the necessary findings, and that the chief psychiatrist of the State Department of Mental Health had certified appellant as an MDO, as required.
Accordingly, we must reverse. As we will discuss, double jeopardy does not bar a retrial on remand. There is no reason to suppose that, in any such retrial, the trial court will fail to make all of the necessary factual findings or will fail to order the appropriate disposition. Thus, we need not address appellant's other contentions.
I
FACTUAL BACKGROUND
A. Testimony of the People's Expert.
The parties stipulated that Dr. Robert Suiter was qualified as an expert in psychology.
Dr. Suiter testified that on March 16, 2010, he conducted an MDO evaluation of appellant. He considered appellant's probation report, psychiatric records, and prison central file. Those records included two previous MDO evaluations of appellant. He also interviewed appellant.
According to the probation report, appellant had been convicted of battery with serious bodily injury and sentenced to prison. When the crime was committed, in November 2008, both appellant and the victim were homeless. Appellant told the probation officer that he found a bag of grapes where he normally slept, and he believed that the victim had left them for him. According to appellant, the grapes were filled with blood, which meant that the victim intended to harm him. Appellant claimed that the victim attacked him with a pipe. Appellant took the pipe away from the victim and hit him with it. However, one day before the crime, appellant had told police that he was going to kill the victim.
Dr. Suiter diagnosed appellant as suffering from either paranoid schizophrenia or schizoaffective disorder. Appellant had the delusional belief that San Luis Obispo County officials were out to get him and his family. In Dr. Suiter's opinion, appellant's mental disorder either caused or was an aggravating factor in appellant's commission of the underlying offense.
Also in Dr. Suiter's opinion, appellant's mental disorder was not in remission. Appellant remained convinced that San Luis Obispo County officials were conspiring against him. Dr. Suiter concluded that appellant, due to his mental disorder, presented a substantial danger of physical harm to others.
Finally, based on appellant's hospital records, Dr. Suiter testified that appellant had been in continuous treatment from April 2009 through at least March 16, 2010. B. Testimony of Appellant.
Appellant conceded that he “currently suffer[ed] from a mental illness....” He also admitted that he left the military because he “came down with ... schizophrenia.” He testified, however, that he was not delusional; rather, San Luis Obispo County officials really had been conspiring against him, since 1997 or 1998. Appellant did not believe that his mental illness contributed to the underlying offense. Rather, he attributed that incident to “a racial attack and death threats by the [victim]....”
Appellant's testimony, including the meandering and unfocused style of his responses, was typical (at least to a layperson) of a paranoid schizophrenic.
II
PROCEDURAL BACKGROUND
In April 2010, appellant filed a petition for a hearing with respect to whether he was an MDO. In the petition, he alleged that he had been due for release on February 28, 2010, but on April 5, 2010, the BPH had determined that he was an MDO and had sustained the requirement that he be subject to treatment as a condition of parole.
Appellant waived a jury trial. In July 2010, after a bench trial, the trial court entered the following order:
“Pursuant to Penal Code Section[s] 2962 and 2966(c) [ sic; should be subdivision (b) ], the court finds that the petitioner does meet the criteria of a mentally disordered offender as follows:
“Petitioner has a severe mental disorder as defined by Penal Code Section 2962(a); ... Petitioner is not in remission; ... Petitioner represents a substantial danger o[f] physical harm to others. [¶] ... [¶]
“The Court orders Respondent [ sic ] committed to the State Department of Mental Health for an additional year....”
III
THE SUFFICIENCY OF THE EVIDENCE
A. Statutory Background.
“ ‘The Mentally Disordered Offender Act (MDO Act), enacted in 1985, requires that offenders who have been convicted of violent crimes related to their mental disorders, and who continue to pose a danger to society, receive mental health treatment ... until their mental disorder can be kept in remission. [Citation.]’ [Citation.] ...
“The MDO Act provides for treatment of certified MDO's at three stages of commitment: as a condition of parole, in conjunction with the extension of parole, and following release from parole. [Penal Code s]ection 2962 governs the first of the three commitment phases, setting forth the six criteria necessary to establish MDO status; these criteria must be present at the time of the State Department of Mental Health's and Department of Correction and Rehabilitation's determination that an offender, as a condition of parole, must be treated by the State Department of Mental Health....
“Challenges to the first phase of commitment are governed by [Penal Code] sections 2964 and 2966, subdivisions (a) and (b). [Penal Code s]ection 2964 provides in pertinent part that ‘[a]ny prisoner who is to be required to accept treatment pursuant to [s]ection 2962 shall be informed in writing of his or her right to request a hearing pursuant to [s]ection 2966.’ [Penal Code s]ection 2966, subdivisions (a) and (b), set forth the procedure an MDO may utilize to challenge the propriety of his or her initial commitment. Should an individual disagree with an MDO certification decision, he or she may request a hearing before the BPH, and may request that independent mental health professionals evaluate the offender. [Citation.] If ‘[a] prisoner ... disagrees with the determination of the [BPH] that he or she meets the criteria of [s]ection 2962, [he or she] may file ... a petition for a hearing on whether he or she, as of the date of the [BPH] hearing, met the criteria of [s]ection 2962.’ [Citation.]” ( Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1061–1063, 116 Cal.Rptr.3d 530, 239 P.3d 1228.)
In such a challenge to the first phase of commitment, the People have the burden of proving beyond a reasonable doubt (Pen.Code, § 2966, subd. (b)) six criteria: (1) the prisoner has been sentenced to prison for a qualifying offense; (2) “[t]he prisoner has a severe mental disorder”; (3) the disorder “is not in remission or cannot be kept in remission without treatment”; (4) the disorder “was one of the causes of or was an aggravating factor in the commission of [the] crime”; (5) “[t]he prisoner has been in treatment for the ... disorder for 90 days or more within the year prior to the prisoner's parole or release”; and (6) specified mental health professionals have evaluated the prisoner and have found that criteria (2)-(4) are satisfied, and the chief psychiatrist of the Department of Corrections and Rehabilitation has certified that criteria (2)-(5) have been satisfied and also that “by reason of his or her ... disorder the prisoner represents a substantial danger of physical harm to others.” (Pen.Code, § 2962; see also Lopez v. Superior Court, supra, 50 Cal.4th at p. 1059, fn. 3, 116 Cal.Rptr.3d 530, 239 P.3d 1228.)
Appellant concedes that there was sufficient evidence of three of these criteria: the requisite disorder, the requisite nonremission, and the requisite causation. He contends, however, that there was insufficient evidence of the remaining three criteria: the requisite underlying offense, the requisite treatment, and the requisite evaluation and certification.
[1] “We review the court's finding on an MDO criterion for substantial evidence, drawing all reasonable inferences, and resolving all conflicts, in favor of the judgment. [Citations.]” ( People v. Martin (2005) 127 Cal.App.4th 970, 975, 26 Cal.Rptr.3d 174.) Appellant argues that the trial court failed to make all of the necessary findings; he further argues that it entered an inappropriate judgment, by ordering him committed for one year, instead of ordering that he be subject to treatment as a condition of parole. Thus, according to appellant, the trial court is not entitled to the benefit of a presumption that it made all of the implied findings that it would normally have to make in an initial commitment proceeding. We need not reach this issue, as ultimately we conclude that, even under the ordinary standard of review, at least one of the necessary findings was not supported by substantial evidence.
B.–C.
D. Evidence of the Requisite Evaluations.
See footnote *, ante.
As noted, the People had to prove that appellant had been evaluated by certain mental health professionals.
Specifically, under Penal Code section 2962, before the BPH can require treatment as a condition of parole, one of the criteria that must be met is that “the person in charge of treating the prisoner and a practicing psychiatrist or psychologist from the State Department of Mental Health have evaluated the prisoner at a facility of the Department of Corrections, and a chief psychiatrist of the Department of Corrections has certified to the Board of Prison Terms that the prisoner has a severe mental disorder, that the disorder is not in remission, or cannot be kept in remission without treatment, that the severe mental disorder was one of the causes or was an aggravating factor in the prisoner's criminal behavior, that the prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to his or her parole release day, and that by reason of his or her severe mental disorder the prisoner represents a substantial danger of physical harm to others.” (Pen.Code, § 2962, subd. (d)(1).)
Alternatively, if the two evaluators disagree with each other, “the Board of Prison Terms shall order a further examination by two independent professionals....” (Pen.Code, § 2962, subd. (d)(2).) “[A]t least one of the independent professionals [must] concur[ ] with the chief psychiatrist's certification....” ( Ibid.)
Under Penal Code section 2966, the People have the burden of proving that all of the criteria listed in Penal Code section 2962 have been satisfied. (Pen.Code, § 2966, subd. (b).)
In People v. Miller (1994) 25 Cal.App.4th 913, 31 Cal.Rptr.2d 423, the reports of three doctors were admitted into evidence—Dr. Zil, Dr. Kincaid, and Dr. Gandhi. Dr. Zil was a chief psychiatrist of the Department of Corrections. Dr. Kincaid was a psychologist for the Department of Mental Health. Dr. Gandhi was a psychiatrist at the California Medical Facility, where the appellant was housed. ( Id. at p. 916, 31 Cal.Rptr.2d 423.) The court held that this was sufficient evidence that the requisite evaluations had been performed. ( Id. at pp. 919–920, 31 Cal.Rptr.2d 423.) For example, it was inferable that Dr. Gandhi was the person in charge of the appellant's treatment. ( Id. at p. 920, 31 Cal.Rptr.2d 423.)
Similarly, in People v. White (1995) 32 Cal.App.4th 638, 38 Cal.Rptr.2d 267, the reports of Dr. Kinkaid, a psychologist with the Department of Mental Health,
and Doctor Pickens, a psychologist at the California Medical Facility, were admitted into evidence. ( Id. at p. 640, 38 Cal.Rptr.2d 267.) In addition, Dr. Zil, the chief psychiatrist, had certified that the appellant met all of the required criteria. ( Id. at p. 641, 38 Cal.Rptr.2d 267.) None of the witnesses were able to identify the person in charge of the appellant's treatment; there was evidence, however, that Dr. Zil was “in charge of all the other doctors” and “the person ultimately responsible for the treatment of all patients.” ( Id. at p. 640, 38 Cal.Rptr.2d 267.)
Possibly the same as the Dr. “Kincaid” in Miller.
The appellate court held that this was sufficient evidence that the appellant had been evaluated by “the person in charge of treating” him. ( People v. White, supra, 32 Cal.App.4th at p. 641, 38 Cal.Rptr.2d 267.) “... Doctor Zil, the person in charge of treatment for all prisoners, was the person in charge of treating [the appellant].... [T]here was substantial evidence that Doctor Pickens was in charge of treating and evaluating White under Doctor Zil's supervision.” ( Id. at pp. 641–642, 38 Cal.Rptr.2d 267.) The court went on to suggest, however, that “[t]he Department of Mental Health may wish to revise its forms or procedures in order to make it easier for the trier of fact at a 2966 hearing to determine that the evaluations come within the requirements of Penal Code section 2962.” ( Id. at p. 642, fn. 1, 38 Cal.Rptr.2d 267.)
[2][3][4] Here, Dr. Suiter testified that appellant's records included two previous MDO evaluations. Those evaluations themselves, however, were never offered into evidence. Thus, we have no way of knowing whether appellant was certified by the chief psychiatrist. We have no way of knowing whether appellant was evaluated by “the person in charge of [his] treatment.” Likewise, we have no way of knowing whether he was evaluated by “a practicing psychiatrist or psychologist from the State Department of Mental Health.” And, most important, we have no way of knowing whether the evaluators concluded that appellant did meet the requisite criteria.
[5] At oral argument, the People argued that the provisions of Penal Code section 2962, subdivision (d) regarding the evaluation and certification are merely procedural prerequisites, not substantive elements that the People must prove. However, it is impossible to square this view with either the statutory law or the case law.
Penal Code section 2962 provides that “a prisoner who meets the following criteria shall be required to be treated” as a condition of parole. Subdivisions (a) through (e) then set forth those criteria. (Subdivision (f) is a definition to be used in applying the other criteria.) We see no way to parse the statute such that “the following criteria” embraces subdivisions (a), (b), (c) and (e), but not subdivision (d).
Under Penal Code section 2966, subdivision (a), the hearing before the BPH is “for the purpose of proving that the prisoner meets the criteria in Section 2962.” Then, if the prisoner seeks review in the trial court, the issue is “whether he or she ... met the criteria of Section 2962.” (Pen.Code, § 2966, subd. (b).) Once again, we see no way to read this as excluding the evaluation and certification criterion set forth in Penal Code section 2962, subdivision (d). Moreover, if it did exclude this criterion, the fact that an appropriate evaluation had not been performed would appear to be irrelevant; it would not even be an affirmative defense. In a worst-case scenario, a prisoner could be “railroaded” without any evaluation whatsoever.
Finally, we do not write on a blank slate. Both People v. Lopez and People v. Miller, supra, construed Penal Code section 2966 as requiring the People to prove at trial that the criterion in Penal Code section 2962, subdivision (d) was met. The People have asked us not to follow these cases, but we find them persuasive, and there is no contrary authority on point.
[6][7] The People argue that appellant forfeited this contention by failing to object to the qualifications of the evaluators. This misses the point. The People have the burden of proving all of the MDO criteria beyond a reasonable doubt, specifically including the evaluation and certification criterion. (Pen.Code, § 2966, subd. (b); People v. White, supra, 32 Cal.App.4th at pp. 641–642, 38 Cal.Rptr.2d 267; People v. Miller, supra, 25 Cal.App.4th at pp. 919–920, 31 Cal.Rptr.2d 423.) An appellant is not required to object at trial in order to preserve a contention of insufficiency of the evidence. ( Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17, 92 Cal.Rptr. 704, 480 P.2d 320; People v. Viray (2005) 134 Cal.App.4th 1186, 1217, 36 Cal.Rptr.3d 693.)
Next, the People note that Dr. Suiter also testified that he was an “independent evaluator,” and thus, anytime he is called upon to perform an MDO evaluation, the prisoner “has had at least two previous MDO evaluations, where it was determined that he met all six criteria.” He added, “I know those facts, of anyone that I'm evaluating for a certification evaluation, [even] if I haven't seen a single document.” The People argue that it was reasonably inferable that the prior evaluators did conclude that appellant met the necessary criteria. Dr. Suiter, however, appears to have been misstating the law. A potential MDO must be examined by an independent professional only if (1) the first two evaluators disagree as to one or more of the MDO criteria (Pen.Code, § 2962, subd. (d)(2)), or (2) the prisoner requests an independent evaluation (Pen.Code, § 2966, subd. (a)). Thus, Dr. Suiter may have meant that, when he is called in, there have been at least two previous MDO evaluations, in at least one of which it was determined that the prisoner met the MDO criteria.
Appellant argues that independent professionals (like Dr. Suiter) may be called in even if neither of the two initial evaluators finds that the MDO criteria have been met. Penal Code section 2962, subdivision (d)(2) is, at best, ambiguous on this point, and we are skeptical that this is what the Legislature actually intended. Fortunately, however, we need not decide this question.
Dr. Suiter also misstated the law when he claimed that the prior evaluators would have determined that “all six criteria” were met. The evaluators are only required to opine regarding three of the six criteria: “[T]hat (A) the prisoner has a severe mental disorder, (B) that the disorder is not in remission or cannot be kept in remission without treatment, [and] (C) that the severe mental disorder was a cause of, or aggravated, the prisoner's criminal behavior....” (Pen.Code, § 2962, subd. (d)(2).) For example, the first two evaluators obviously cannot address the sixth criterion, which is whether the prisoner has already been evaluated by two evaluators.
[8][9] This legal nitpicking points to a larger problem. Dr. Suiter was testifying based on a legal conclusion. Such testimony, however, is not substantial evidence. ( Downer v. Bramet (1984) 152 Cal.App.3d 837, 841, 199 Cal.Rptr. 830.) Moreover, he was not testifying about what actually occurred in appellant's case; he was testifying based on the speculative assumption that the legal requirements for an MDO proceeding (as he understood them) had, in fact, been complied with. But this was sheer bootstrapping. The fact that those requirements had been complied with was the very point that the People had to prove and the trial court had to determine. “[A]n expert's opinion testimony does not achieve the dignity of substantial evidence where the expert bases his or her conclusion on speculative, remote or conjectural factors. [Citation.]” ( People ex rel. Brown v. Tri–Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1567, 90 Cal.Rptr.3d 644.)
Finally, even assuming Dr. Suiter's testimony was substantial evidence that both of the prior evaluators found that the relevant MDO criteria had been met, there still was no evidence as to the identity of the prior evaluators. As appellant points out, there was not even any evidence that they evaluated him in connection with his most recent imprisonment, rather than at some earlier time.
In sum, then, there was insufficient evidence to support the evaluation and certification criterion.
IV
DISPOSITION
[10] The order appealed from must be reversed. Because the MDO scheme is civil, double jeopardy does not apply ( People v. Francis (2002) 98 Cal.App.4th 873, 877, 120 Cal.Rptr.2d 90); thus, the matter may be retried. ( People v. Dodd (2005) 133 Cal.App.4th 1564, 1571, fn. 3, 35 Cal.Rptr.3d 692.) Any new hearing on the petition must be held within 60 days after the issuance of our remittitur, unless appellant or his counsel waives time or good cause is shown. (See Pen.Code, § 2966, subd. (b).) The determination that appellant is subject to treatment as a condition of parole will remain in effect “until the completion of the court proceedings.” ( Ibid.)
In light of our disposition, appellant's additional contentions are moot. ( People v. Dodd, supra, 133 Cal.App.4th at p. 1571, fn. 3, 35 Cal.Rptr.3d 692.)