Filed 11/18/19
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


THE PEOPLE,                                  2d Crim. No. B292119
                                          (Super. Ct. No. 18PT-00498)
     Plaintiff and Respondent,             (San Luis Obispo County)

v.

PIERRE R.,

     Defendant and Appellant.



             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.




       All statutory references are to the Penal Code unless
        1
otherwise stated.
                         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.



                                 2
         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




      2 In the alternative, appellant argues that he was denied
effective assistance of trial counsel, but he makes no showing
that counsel’s performance was deficient and that there was
resulting prejudice. (Strickland v. Washington (1984) 466 U.S.
668, 687; People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
“Failure to object rarely constitutes constitutionally ineffective
legal representation . . . .” (People v. Boyette (2002) 29 Cal.4th
381, 424.)


                                  3
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


      3 In 2016, the Legislature amended section 2962,
subdivision (f) (see Stats. 2016, ch. 430, § 1, eff. Jan. 1, 2017 (S.B.
1295) in response to People v. Stevens (2015) 62 Cal.4th 325
which held that hearsay testimony by a mental health expert
based on documentary evidence could not be used at a MDO
hearing to prove the commitment offense involved force or
violence or the threat of force or violence. (Id. at p. 339.) The
Supreme Court stated that “the Legislature is free to create
exceptions to the rules of evidence as it has done in the SVP
context.” (Ibid.) That is exactly what section 2962, subdivision
(f) does. (See Off. of Sen. Floor Analyses, Analysis of Sen. Bill No.
1295 (2015-2016 Reg. Sess.) Aug. 22, 2016, p. 5.)


                                  4
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



                                  5
“‘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
close to the victim. He claimed that he was the King of England
and had the power to adopt the 11-year-old girl. There was
sufficient evidence of an implied threat to use force or violence in
the commission of the offense. (§ 2962, subd. (e)(2)(Q).)
                        90 Days of Treatment
             Appellant contends that he did not receive at least 90
days treatment for his mental disorder, as required by the MDO
Act. (§2962, subd. (c).) The mental health records show that
appellant was treated for schizoaffective disorder. However,
appellant argues that schizoaffective disorder is not the same as
“schizophrenia,” and, therefore, he did not receive treatment for
the disorder that was the aggravating cause for the underlying
offense.
             In People v. Bendovid (2018) 30 Cal.App.5th 585,
defendant was diagnosed and treated in jail for nonqualifying
disorders (mood and borderline personality disorders) before he
was diagnosed and treated in prison for the qualifying mental
disorder (delusional disorder). (Id. at pp. 588-589.) We held that
the People could not bootstrap the treatment for mood and
borderline personality disorder in place of treatment for the
delusional disorder. (Id. at p. 595.) “The People must prove
Bendovid was treated for the severe mental disorder that subjects



                                 6
him to the MDO commitment. [Citation.] Proof that he was
treated for other mental disorders is not sufficient. [Citation.] . . .
‘Section 2962, subdivision (c) specifically refers to treatment of
“the” mental disorder, not “a” mental disorder.’ [ Citation.]”
(Ibid.)
             The mental health records state that appellant was
treated for schizoaffective disorder which, technically, is at
variance with Dr. Shenouda’s testimony that appellant was
treated for schizophrenia. This, however, is much ado about
nothing. At oral argument, appellant admitted that
schizophrenia and schizoaffective disorder are substantially the
same and call for the same treatment. We accept this
concession. 4
             The medical literature supports our conclusion.
“Schizoaffective” means “pertaining to or exhibiting of both
schizophrenic and mood disorders (mania and depression).”
(Dorland’s Illustrated Medical Dictionary (28th ed.1994) p. 1491.)
The American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders (5th ed. 2013) (DSM-5),
Schizoaffective Disorder, states: “Distinguishing schizoaffective
disorder from schizophrenia and from depressive and bipolar


      4 What is appellant’s disorder or infirmity? Or perhaps we
should rephrase the question: What are appellant’s disorders and
infirmities? Schizophrenia, pedophilia, sexual deviancy, mental
illness relating to violence, substance abuse, schizoaffective
disorder, paranoia, hallucinations, delusions, disorganized
speech, lack of insight, or all of the above? Just where to start on
these problems should be left to the sound judgment of mental
health professionals.




                                   7
disorders with psychotic features is often difficult.” (Id. at p.
109.) Different diagnostic criteria are used to make the
distinction and the diagnosis can change over time. (Ibid.)
Unlike Bendovid, appellant received treatment for his mental
disorder for the full 90 days.
             We reject the form-over-substance argument that a
mental health expert at a MDO hearing must testify that the
treatment for the severe mental disorder matches, word-for-word,
the mental disorder which was a cause for the underlying offense.
Mental health treatment should be adjusted to the symptoms an
MDO is then experiencing. Appellant related that he was the
King of England when arrested. This sounds like schizophrenia,
the diagnosis for which he claims that went untreated. But the
mental health reports do not show that appellant continued his
claim that he was the King of England. Should the 90 days of
treatment focus on trying to make him understand that he is not
even English, let alone the King of England?
             Appellant cites no authority that the treatment for
schizophrenia is not substantially the same as schizoaffective
disorder or that section 2962, subdivision (c) requires that the
diagnosis be static during the 90-day treatment period. That is
what the DSM-5 warns about when schizoaffective disorder is
diagnosed and treated. Appellant’s mental health records bear
that out. On September 23, 2017, the treating psychiatrist,
diagnosed appellant as suffering from “Schizoaffective Disorder”
and “Schizoaffective Disorder, Bipolar.” A second entry, made
the same day, states that appellant “currently meets criteria for
conditional diagnosis of [DSM-5] 295.70 Schizoaffective Disorder,
Bipolar Type per hx [i.e., history] and medication treatment.”
(Italics added.) The mental health records state it was



                                8
appellant’s “6th term with CDCR, [and that appellant] has an
extensive arrest history (20+ times) since 1990. He is also a PC
290 registrant . . . [and] [h]e has been to outpatient and
impatient care in the community. He was admitted to Patton
State Hospital three times in 2005, 2007, and 2011, [and
appellant] has been receiving mental health services in CDCR
since 2001 . . . .” Appellant had a history of substance abuse
(alcohol, marijuana, and methamphetamine), three or four
suicide attempts, paranoia, depression, mood swings, irritability,
and impulsivity, and told a hospital clinician that he was not
taking his medication and suffered from attention deficit
hyperactivity disorder (ADHD), which he described as “‘hyper, I
forget things.’”
             It took no leap of logic for the trial court to factually
find that appellant met all the MDO criteria and should be
committed to the Department of Mental Health for treatment. 5
                              Disposition
             The judgment (MDO commitment order) is affirmed.
             CERTIFIED FOR PUBLICATION.



                                      YEGAN, Acting P. J.
I concur:



            PERREN, J.



      5 Finally, appellant contends that the jury waiver was
ineffectual. There is no factual basis for this and the claim does
not require any legal analysis.


                                  9
TANGEMAN, J., Dissenting:
             I respectfully dissent. The record does not support
the majority’s conclusion that appellant received 90 days of
treatment for the disorder for which he was committed as a
Mentally Disordered Offender (MDO). The majority effectively
declares that diagnosis and treatment for schizoaffective disorder
and schizophrenia are interchangeable. That may or may not be
true as a matter of psychiatric treatment, but it is not the role of
the court to so declare in the absence of expert testimony in the
record in support of that conclusion.
             Forensic psychologist Dr. Angie Shenouda testified
that appellant suffered from schizophrenic and pedophilic
disorders. The prosecution conceded the MDO criteria was not
met for the pedophilic disorder.
             Shenouda did not opine whether appellant received
at least 90 days of treatment for his schizophrenic disorder.
Instead, the prosecution submitted appellant’s treatment records
from the California Department of Corrections and
Rehabilitation. The records reflect that appellant was diagnosed
with, and treated for, “Schizoaffective Disorder” and
“Schizoaffective Disorder, Bipolar Type.”
             In People v. Bendovid (2018) 30 Cal.App.5th 585, 595
(Bendovid), we held there was insufficient evidence to show that
the defendant received at least 90 days of treatment for
delusional disorder. We concluded that evidence of his treatment
for an unspecified mood disorder could not be considered towards
the 90-day treatment for delusional disorder because “the
different diagnoses meant Bendovid was being diagnosed and
treated for a different disorder in prison than the two disorders
he was diagnosed and treated for in jail.” (Id. at p. 590.)



                                 1
              Similarly here, the evidence shows appellant was
diagnosed and treated by the state hospital for schizoaffective
disorder, but there is no evidence he received treatment for
schizophrenic disorder. The majority glosses over this
fundamental distinction by concluding, without supporting
evidence in the record, that appellant’s “schizophrenia [was]
described as schizoaffective disorder in appellant’s mental health
records.” (Maj. opn. ante, at p. 2.) Schizophrenic disorder and
schizoaffective disorder are not the same mental disorder. (See
American Psychiatric Assn., Diagnostic & Statistical Manual of
Mental Disorders (5th ed. 2013) pp. 99, 105-106 [diagnostic
criteria for schizophrenic disorder includes a determination that
“schizoaffective disorder . . . have been ruled out”].)
              The majority concludes that schizoaffective disorder
“sounds like schizophrenia.” (Maj. opn. ante, at p. 8.) It
accordingly “reject[s] the form-over-substance argument that a
mental health expert at [an] MDO hearing must testify that the
treatment for the severe mental disorder matches, word-for-word,
the mental disorder which was the cause for the underlying
offense.” (Ibid.) But different words have different meanings,
and the prosecution introduced no evidence on the similarity
between these different disorders at trial. It is not our role to “fill
in the gap” by speculating how qualified mental health
professionals would have testified about the similarities (or
dissimilarities) in the diagnosis and treatment of these two
distinctive disorders, if they had been asked (which they were
not).
              More troubling is the majority’s statement that
“[a]ppellant cites no authority that the treatment for
schizophrenia is not substantially the same as schizoaffective



                                   2
disorder” or that his diagnosis did not change “during the 90-day
treatment period.” (Maj. opn. ante, at p. 8.) This turns the
burden of proof on its head. It is the prosecution’s burden to
prove that the six criteria of Penal Code section 2962 have been
satisfied; not appellant’s burden to prove otherwise. (People v.
Sheek (2004) 122 Cal.App.4th 1606, 1611.)
             Finally, I disagree with the majority’s contention that
appellant “admitted that schizophrenia and schizoaffective
disorder are substantially the same and call for the same
treatment” at oral argument. (Maj. opn. ante, at p. 7.) I view the
colloquy between court and counsel differently. 1 Counsel for



      1 The following colloquy occurred between the court and
counsel:

      “[Court]: What does the word schizophrenia mean?

      [Counsel]: . . . That would have been a great question for
the prosecutor to ask the expert witness and put into evidence.
Because there is no evidence to connect schizophrenia and
schizoaffective disorder.

      [Court]: What is schizoaffective disorder?

       [Counsel]: . . . [T]hat would be the kind of thing the
prosecutor who had the burden of proof to carry beyond a
reasonable doubt ought to have thought about when they had
this gigantic gap in the evidence where on the one hand, they
submitted the records to prove this element . . . and the records
says ‘schizoaffective disorder’ and then they put on an expert who
said this person suffers from schizophrenia without mention
whatsoever about how those two relate.”



                                 3
      Later in argument, the following transpired:

      “[Court]: Do you think there’s a difference in the medical
treatment for a person suffering from schizophrenia and . . .
schizoaffective disorder?

       [Counsel]: . . . I have experience in this and I would say
‘yes, they are substantially the same; however, . . . let’s say they
are identical, where’s the evidence of that?’”

      Still later, the following occurred:

      “[Court]: . . . Is that a concession that there is no
substantial difference between schizophrenia and schizoaffective
disorder?

       [Counsel]: My understanding is that schizoaffective
disorder includes schizophrenia plus another disorder, like a
depressive element. And so, the treatments would overlap at
least, or if not be identical.

      [Court]: You’re saying that if you are treated for
schizoaffective disorder, you are necessarily treated for
schizophrenia?

      [Counsel]: Yes. I did.

      [Court]: That’s what I thought you said. . . .

       [Counsel]: . . . [T]he question is simply whether . . . a trier
of fact . . . is allowed to fill in that gap of their own personal
knowledge or guesswork or anything else when there is absolutely
no evidence in the record to support it.”




                                   4
appellant clearly and repeatedly argued that any assumptions
one might make about similarities between these different
disorders, including the court’s or his own, could not be a
substitute for evidence in the record.
             Here, the prosecution did not present evidence of the
similarity between these two disorders, or that treatment of these
disorders is necessarily the same. Based on this record, the
“court had no basis to find [appellant] was treated for the
disorder that was relevant to his commitment.” (Bendovid,
supra, 30 Cal.App.5th at p. 591.)
             CERTIFIED FOR PUBLICATION.




                                    TANGEMAN, J.




                                5
                 Matthew G. Guerrero, Judge

           Superior Court County of San Luis Obispo

                ______________________________

            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.
