(Super. Ct. No. CM020090)
The opinion of the court was delivered by: Robie , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Under the Mentally Disordered Offender (MDO) Act individuals convicted of particular enumerated violent offenses may be required to receive mental health treatment. (Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1057 (Lopez).) As relevant in this case, "[t]he severe mental disorder was one of the causes of or was an aggravating factor in the commission of a crime for which the prisoner was sentenced to prison." (Pen. Code,*fn1 § 2962, subd. (b).) "The MDO Act provides for treatment of certified MDO's at three stages of commitment: as a condition of parole [section 2962], in conjunction with the extension of parole [section 2966, subdivision (c)], and following release from parole [section 2970]. Section 2962 governs the first of the three commitment phases, setting forth the six criteria necessary to establish MDO status . . . ." (Lopez, at pp. 1061-1062.) Three of the six criteria under section 2962 are foundational and need only be established at the initial section 2962 hearing. The other three criteria are dynamic and must be established at each annual review of commitment. (Lopez, at pp. 1062-1063.)
Defendant Michael Anthony Crivello appeals an order of civil commitment as an MDO under section 2970. He contends that because he was never committed as a mentally disordered offender under section 2962, he could not be recommitted as a mentally disordered offender under section 2970. The People properly concede. We shall reverse.
RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In November 2003, defendant was charged with second degree robbery, assault with a deadly weapon, and misdemeanor resisting arrest.*fn2 He was found incompetent to stand trial and proceedings were suspended until July 2004. Once proceedings were reinstated, defendant pled no contest to second degree robbery and the remaining counts were dismissed. The San Luis Obispo court sentenced him to a two-year state prison term.
In September 2005, the Board of Prison Hearings*fn3 determined defendant met the criteria of section 2962 as an MDO and sustained the condition he undergo mental health treatment as a condition of parole. Defendant challenged this determination and at an April 2006 trial on the matter, two psychiatric experts offered conflicting opinions. (§ 2966, subd. (b).) Dr. Mendenhall concluded defendant's mental illness was probably among the reasons he committed the robbery. Dr. Phenix concluded defendant was malingering, did not have a mental disorder, and any such disorder was not a cause or aggravating factor in his offense. Based on the conflicting expert testimony, and the tentative nature of Dr. Mendenhall's opinions, the court*fn4 found there was a reasonable doubt whether defendant had a substantial mental disorder that was a causative or aggravating factor in the robbery. The standard of proof is beyond a reasonable doubt. (§ 2966, subd. (b).)
In both April 2007 and July 2008, the board certified defendant as an MDO and following a court trial, the court found he did not meet the criteria. The board again determined defendant met the criteria of an MDO in January 2009, but defendant was released from the hospital prior to trial. In July 2009, the district attorney again sought continued involuntary treatment of defendant as an MDO. Defendant refused to come to trial, and in August 2009, the court found he had a severe mental disorder that could not be kept in remission without treatment. Accordingly, his commitment was extended under section 2970.
In May 2010, the district attorney filed another petition for continued involuntary treatment of defendant under section 2970. Defense counsel argued res judicata barred the proceedings, as defendant had been decertified as an MDO in 2006. Ultimately, the matter was continued until December 2010. After reviewing the transcript from the April 2006 trial and hearing argument on the res judicata issue, the trial court found the recommitment proceeding was not barred by res judicata or collateral estoppel, because the case was in a distinct procedural posture from the earlier proceedings. The trial court did not believe the San Luis Obispo court had necessarily "gone [so] far" as to find defendant did not have a mental disorder, rather, it found the San Luis Obispo court had merely expressed a reasonable doubt on that point. Moreover, the trial court found that even if the San Luis Obispo court had found defendant did not have a severe mental disorder, since that is a criteria subject to change, the determination did not have res judicata effect. Following a trial on the petition, the court found defendant had a severe mental disorder that could not be kept in remission without treatment.
Defendant contends he has been illegally committed under section 2970. The People properly concede the issue, noting that because in 2006 the San Luis Obispo court found defendant was not a mentally disordered offender, that ruling "has collateral estoppel and res judicata effect on ...