Original Proceeding San Bernardino County Super. Ct. No. FELSS1001624, Ct.App. 4/2 E051465 Katrina West, Judge
Ronald R. Boyer, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R Gillette, Chief Assistant Attorney General, Gary W. Schons and Julie L. Garland, Assistant Attorneys General, Lilia E. Garcia, Steven T. Oetting and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion): Ronald R. Boyer, Quisteen S. Shum Deputy Attorney General
Penal Code section 2962, which is part of the Mentally Disordered Offender (MDO) Act, requires civil commitment of a state prisoner during and after parole when a chief psychiatrist of the Department of Corrections and Rehabilitation has certified that the prisoner suffers from a severe mental disorder that is not or cannot be kept in remission without treatment, that the disorder was one of the causes of or an aggravating factor in the prisoner’s qualifying crime, that the prisoner has been in treatment for the disorder for at least 90 days within the year preceding release on parole, and that the prisoner represents a substantial danger of physical harm to others by reason of the disorder. (Pen. Code, § 2962, subd. (d)(1).) A prisoner may challenge the MDO certification by requesting a hearing before the Board of Parole Hearings (Board) and, if unsuccessful, in superior court as to whether the prisoner “meets the criteria in Section 2962.” (Pen. Code, § 2966, subd. (a); see also id., subd. (b).)
What constitutes “the criteria in section 2962”? The Court of Appeal concluded that the “criteria” to be considered by the trier of fact at the superior court hearing include not only the substantive criteria that were used by mental health professionals to determine whether the prisoner was an MDO, but also the procedures by which the MDO determination was made—such as whether the person in charge of the prisoner’s treatment at the Department of Corrections and Rehabilitation and a practicing psychiatrist or psychologist from the State Department of State Hospitals evaluated the prisoner at a facility of the Department of Corrections and Rehabilitation, whether the evaluators concurred as to the prisoner’s condition, and whether a chief psychiatrist of the Department of Corrections and Rehabilitation certified the prisoner as an MDO to the Board. (Pen. Code, § 2962, subd. (d)(1), (2).) The Court of Appeal relied on the absence of evidence before the trier of fact that appellant Kelvin Harrison had been “evaluated by ‘the person in charge of [his] treatment’ ” or “by ‘a practicing psychiatrist or psychologist from the State Department of [State Hospitals]” or that he “was certified by the chief psychiatrist” to conclude that there was “insufficient evidence” to support what the Court of Appeal characterized as “the evaluation and certification criterion” of Penal Code section 2962. The Court of Appeal thus reversed the judgment classifying Harrison as an MDO and ordered a new hearing.
We conclude the Court of Appeal erred. The evaluation and certification provisions of Penal Code section 2962 specify the procedures by which an MDO determination is initiated; they do not constitute the statutory criteria by which the trier of fact at a hearing decides whether a prisoner is or is not an MDO. We therefore reverse the Court of Appeal and remand for further proceedings.
Kelvin Harrison was convicted of battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and sentenced to two years in prison in March 2009. He was due for release on parole on February 28, 2010, but was required to accept treatment as an MDO. On April 5, 2010, the Board affirmed Harrison’s certification as an MDO under Penal Code section 2962. On April 23, 2010, Harrison petitioned for a hearing in superior court under section 2966, subdivision (b) to challenge the Board’s determination. Jury trial was waived.
At the bench trial, Dr. Robert Suiter, a forensic psychologist with an expertise in evaluating MDO’s, testified that he interviewed Harrison at the Board’s request on March 16, 2010. He also examined Harrison’s two previous MDO evaluations, his psychiatric records, and certain documents from his prison file.
Dr. Suiter diagnosed Harrison, who had been discharged from the military in 1983 with a diagnosis of schizophrenia and depression, as suffering from schizophrenia, paranoid type—a severe mental disorder that impaired his thoughts and perceptions of reality and grossly impaired his behavior. Harrison’s most prominent symptoms were his paranoid and grandiose delusions that San Luis Obispo County officials and law enforcement were conspiring against him or his family and were trying to do him harm. In Dr. Suiter’s opinion, Harrison was not in remission and lacked insight into his disorder.
Dr. Suiter opined that Harrison’s schizophrenia was an aggravating factor in or cause of the crime that resulted in his conviction of battery with serious bodily injury. At the time of the offense, Harrison believed that grapes in a bag on the ground were filled with blood, which he interpreted to mean that the victim intended to harm him. In response, defendant struck the victim several times with a pipe. Dr. Suiter also testified that Harrison represented a substantial danger of physical harm to others by reason of his schizophrenia, in that he was prone to misinterpret environmental cues to suggest he was at physical risk. Without insight into his mental disorder, Harrison was unable to control his behavior and unlikely to seek treatment and therefore presented the “on-going potential” of continuing to commit violent crimes.
Harrison had received well over 90 days of treatment within the prior year, both at Patton State Hospital and, before that, at the prison.
Harrison testified that he did not recognize Dr. Suiter and did not recall being interviewed by him. Harrison admitted he had been diagnosed with schizophrenia and depression when he was discharged from the military, but said he had received excellent treatment from the Department of Veterans Affairs before moving to San Luis Obispo. He did not believe his mental disorders contributed to his crime. When asked whether he currently suffers from a mental disorder, Harrison replied, “Yes, sir. I do suffer from being very concerned about my family members, my mother and sister, because I’m the only male of the ...