Barry T. LaBarbara, Judge Superior Court County of San Luis Obispo (Super. Ct. No. F471357)
The opinion of the court was delivered by: Yegan, J.
CERTIFIED FOR PUBLICATION
In mentally disordered offender (MDO) law, the familiar rule of People v. Miller (1994) 25 Cal.App.4th 913 has well served the interests of prisoners and the people for close to 20 years. A qualified mental health professional may rely on a probation report to render an opinion whether a defendant is an MDO. Here we respectfully disagree with the dicta expressed by our colleagues in People v. Baker (2012) 204 Cal.App.4th 1234, 1246.
Mark Stevens appeals from the judgment entered after the trial court
determined he was an MDO. (Pen. Code, § 2960 et seq.)*fn1
He contends that 1. the People's expert was erroneously
allowed to give an opinion on "force or violence," and 2. there is no
substantial evidence to support the finding that the commitment
offense, petty theft with a prior, is a qualifying offense. We
Doctor Kevin Perry, a clinical psychologist at Atascadero State Hospital, opined that appellant suffered from a severe mental disorder, schizophrenia undifferentiated type, and met all the MDO criteria.
Relying on the probation report, Doctor Perry described the circumstances of the 2009 commitment offense as follows: "Mr. Stevens was observed placing items at a drug store into his waistband and pockets and then walking out of the store without paying. When loss prevention officers then confronted him about that, Mr. Stevens threatened to assault and to kill the loss prevention agents. [¶] He, also, tried to push a shopping cart into one of them."
Although petty theft with a prior is not a crime of force or violence, the trial court found that appellant's threats and violent acts in the commission of the offense came within the "force or violence" provision of the MDO law.
Reliable Hearsay and Expert Opinion
Appellant argues that Doctor Perry's testimony was based upon hearsay. When asked whether appellant represented a danger of physical harm to others, Doctor Perry testified, without objection: "Mr. Stevens has a history of aggressive and threatening behaviors during periods of psychiatric instability. As I already testified, during the MDO qualifying offense he threatened to kill los[s] prevention agents."
At the conclusion of the trial, appellant argued that Doctor Perry's testimony was hearsay and there was no substantive evidence of force or violence. The trial court ruled: "The testimony, though, about the commission of the crime came in without objection." We agree. Appellant is precluded from arguing for the first time on appeal that the testimony was hearsay or violated the confrontation clause. (People v. Miller, supra, 25 Cal.App.4th at p. 917; People v. Tafoya (2007) 42 Cal.4th 147, 166.)
On the merits, it is settled law in this appellate district that a mental health expert may rely on reliable hearsay in a probation report in rendering an opinion at an MDO trial. (People v. Valdez (2001) 89 Cal.App.4th 1013, 1017; People v. Campos (1995) 32 Cal.App.4th 304, 310; People v. Miller, supra, 25 Cal.App.4th at pp. 917-918.) Doctor Perry's testimony concerning the probation report was not offered for the truth of the facts stated but as the basis for the doctor's expert opinion. (People v. Cooper (2007) 148 Cal.App.4th 731, 747.) "The hearsay relied upon by an ...