People v. Pierre R.

          Superior Court County of San Luis Obispo Super. Ct. No. 18PT-00498 Matthew G. Guerrero, Judge

          Christopher Lionel Haberman, under appointment by the Court of Appeal for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Christopher G. Sanchez, David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.

          YEGAN, ACTING P. J.

         Pierre R. suffers from a multitude of mental infirmities. The trial court found that he is a Mentally Disordered Offender. (MDO Act; Pen. Code, § 2960 et seq.).^[1] His range of mental infirmities provides a real challenge for mental health professionals. And it is somewhat challenging for the courts to “pigeonhole” his multiple disorders into the statutory scheme. He appeals the trial court's order committing him to the Department of Mental Health for treatment. We affirm.

         Procedural History

         In 2016, appellant, a registered sex offender, accosted an 11-year-old girl in the presence of her mother. He walked his fingers up the girl's arm and shoulder, touched her face, and tried to walk away with her. Mother protested. The police were summoned and appellant was arrested. Appellant pled no contest to felony annoying or molesting a child under the age of 18 with a prior conviction (§ 647.6, subds. (a)(1) & (c)(1)). He was sentenced to state prison.

         In 2018, the Board of Prison Terms certified appellant as an MDO and committed him to the State Department of Mental Health for treatment. Appellant filed a petition challenging the decision (§ 2966, subd. (b)), and personally waived jury trial.

         Doctor Angie Shenouda, a forensic psychologist, opined that appellant suffered from schizophrenia and pedophilic disorder, severe mental disorders pursuant to the MDO Act. She said that appellant had a long history of sexually deviant behaviors directed at prepubescent girls. The schizophrenia, described as schizoaffective disorder in appellant's mental health records, was manifested by hallucinations, delusions, disorganized speech, and paranoia.

         Dr. Shenouda opined that the schizophrenia was not in remission and that appellant represented a substantial risk of harm to others because he lacked insight about his disorder and treatment. Appellant also had a history of severe mental illness related violence. It was a concern because appellant had an untreated substance abuse problem, was not medication compliant, and was on probation or supervised release when he committed the qualifying offense.

         Admissibility of Police Reports to Establish That Commitment Offense Involved Force or Violence

         Appellant contends that the police report of the commitment offense was inadmissible and violated his due process rights in establishing that the commitment offense involved force or violence. (§ 2962, subd. (e).) Appellant forfeited the due process theory by not objecting on that ground.^[2] (People v. Champion (1995) 9 Cal.4th 879, 918 [due process objection waived]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20 [same].)

         On the merits, there was no due process violation. (See People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 [application of ordinary rules of evidence under state law does not violate a federal constitutional right to present a defense or right to fair trial].) Dr. Shenouda testified that the probation report stated that appellant touched the victim. The probation report referred to a follow-up police report prepared by a police detective two days after appellant's arrest. Appellant argued that the police report was not admissible under the MDO Act because it is “a different level of information than either a probation report or sentencing report.” The trial court overruled the objection and received the police report into evidence pursuant to section 2962, subdivision (f).

         The current MDO statute provides that the underlying details of the commitment offense, “including the use of force or violence[] causing serious bodily injury, or the threat to use force or violence likely to produce substantial physical harm, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of State Hospitals.” (§ 2962, subd. (f), italics added.)^[3]

         In People v. Otto (2001) 26 Cal.4th 200 (Otto), our Supreme Court held that multiple hearsay in a probation report, derived from police reports about the qualifying offense, was admissible pursuant to the Sexually Violent Predators Act (SVP; Welf. & Inst. Code, § 6600, subd. (a)(3)) and did not violate defendant's due process rights. (Id. at pp. 206-207, 209-215; see People v. Burroughs (2016) 6 Cal.App.5th 378, 410 [same].) There is no reason why this same principle does not apply to the MDO Act (§ 2962, subd. (f)) which mirrors the SVP Act (Welf. & Inst. Code, § 6600, subd. (a)(3)). The purpose of the SVP Act and the MDO Act is “‘to protect the public from dangerous felony offenders with mental disorders and to provide mental health treatment for their disorders.' [Citations.]” (People v. McKee (2010) 47 Cal.4th 1172, 1203.) “[C]ourts routinely rely upon hearsay statements contained in probation reports to make factual findings concerning the details of the crime.” (Otto, supra, 26 Cal.4th at p. 212.)

         Here the police report has all the indicia of reliability to satisfy due process and is expressly referenced in the probation report. (Otto, supra, 26 Cal.4th at p. 211.) Like the probation report in Otto, the police report is admissible “documentary evidence” within the meaning of section 2962, subdivision (f). Appellant's trial counsel showed the police report to Dr. Shenouda and asked whether it stated that appellant approached the victim and stood six inches away from the victim. Appellant corroborated the details of the police report and admitted that he walked his fingers up the victim's arm, “pet” the victim, and “[p]ut her hair out of her eyes.” The admission of the police report and Dr. Shenouda's testimony about the police report did not violate any due process right.

         Implied Threat of Force or Violence

         Appellant contends that annoying or molesting a child is not a crime of force or violence, but under the catchall provisions of section 2962, subdivisions (e)(2)(P) and (e)(2)(Q), the offense involved the implied threat to use force or violence. (See e.g., People v. Kortesmaki (2007) 156 Cal.App.4th 922, 928 & fn. 3.) Appellant asked the victim for her phone number, said he had a website called ILikegirls.com, and asked the victim's mother “‘Can your daughter come out to play?'” The mother grabbed the victim to get her away from appellant, took the victim to a restroom, and told appellant to go away. Appellant returned 30 minutes later, reached across the table, and walked his fingers up the victim's arm, touched her face, and pet her head. Appellant's words and actions showed that he wanted to have a sexual relationship with the victim and he would not take “no” for an answer. Even after the police were called, appellant stood ...