Filed 4/25/13 P. v. Sorenson CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                   2d Crim. No. B242938
                                                                            (Super. Ct. No. F472797)
     Plaintiff and Respondent,                                              (San Luis Obispo County)

v.

RONALD SORENSON,

     Defendant and Appellant.




                   Ronald Sorenson appeals from a judgment declaring him to be a mentally
disordered offender (MDO) and committing him to the Department of Mental Health for
treatment. (Pen. Code, § 2962.)1 Appellant contends that no admissible evidence was
offered to support the trial court's findings that appellant's commitment offense involved
the use of force or violence, and that he received the requisite 90 days of treatment within
the year prior to his hearing before the Board of Parole Hearings (BPH). We affirm.
                                FACTS AND PROCEDURAL HISTORY
                   In 2010, appellant was convicted of assault with a deadly weapon (§ 245,
subd. (a)(1)) and was sentenced to state prison. After the BPH determined that appellant



         1 All further statutory references are to the Penal Code.
was an MDO subject to involuntary treatment as a condition of his parole, appellant filed
a petition for hearing and waived his right to a jury trial.
              Dr. Phylissa Kwarnter, a clinical psychologist at Atascadero State Hospital
(ASH), testified at the hearing. Dr. Kwartner interviewed appellant and spoke with his
treatment team. The doctor also reviewed appellant's medical records, his prior MDO
evaluations, and his probation report regarding the commitment offense. Based on this
information, Dr. Kwartner opined that appellant met the criteria for MDO treatment.
              Appellant suffers from paranoid schizophrenia, which qualifies as a serious
mental disorder under the MDO law. Appellant began requiring treatment in 1969, when
he was 18 years old. He has been hospitalized in state facilities on 23 separate occasions.
His symptoms include paranoid delusions, conspiracy theories, disorganized thoughts,
rambling and tangential speech, catatonia, agitation, and poor impulse control. He has
been found incompetent to stand trial on six separate occasions.
              Based on her review of the probation report regarding appellant's assault
with a deadly weapon conviction, Dr. Kwartner concluded that appellant's mental illness
was at least an aggravating factor in his commission of the offense. Appellant started a
fire at a bus station, then threw burning debris at an employee and peace officers. The
debris struck the employee, burning his left hand and singeing off his eyebrows.
Appellant demonstrated his paranoia by suggesting that he threw the debris to protect
himself.
              Dr. Kwartner opined that appellant's mental illness was not in remission as
of the date of the BPH hearing. Appellant admitted he was exhibiting signs of his illness
several months after the hearing. The day prior to the hearing, a psychiatrist noted that
appellant was guarded and irritable. Since the hearing he has been aggressive, irritable,
and agitated and has been removed from two group therapy sessions. The doctor also
opined that appellant's mental illness could not be kept in remission without treatment
because he refuses to take his prescribed medications or follow his treatment plan.
              Dr. Kwartner opined that appellant had received at least 90 days of
treatment during the year prior to his BPH hearings. She reached this conclusion based

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on records indicating he had received 173 days of treatment during that period. The
doctor further opined that appellant continued to represent a substantial danger of
physical harm by reason of his mental disorder. Appellant had been hospitalized five
times after committing violent offenses, which included a 1990 conviction for assault
with a deadly weapon on a peace officer, a 2005 conviction for elder abuse, and a 2010
conviction for battery on a peace officer. Appellant was convicted of elder abuse after
hitting and kicking his mother while she was lying on the ground. Appellant was still
exhibiting the symptoms that were present when the commitment offense was perpetrated
and refused to take his medications, and displayed a tendency to engage in violent
behavior when in the community.
              Appellant testified in his own behalf. He claimed he did not know what
schizophrenia was and denied ever speaking with Dr. Kwartner. Appellant denied
starting the fire that led to his commitment offense and claimed he had accidentally let go
of the burning debris after being sprayed with something. He also denied hitting his
mother or ever being charged with doing so.
              Appellant did not believe that any of his violent acts had anything to do
with a mental disorder. If he did have a mental disorder, "it is rather sporadic" and "has
nothing to do . . . with aggressive things." He also claimed he did not have any
medication to take because "[m]edication is something you come to an agreement with
your dispensing or diagnosing or prescribing medical personnel" and he had yet to come
to such an agreement.
              At the conclusion of the trial, the court found that appellant met the MDO
criteria and accordingly denied his petition and ordered him committed for treatment.
                                      DISCUSSION
              Appellant contends the order committing him for MDO treatment must be
reversed because no admissible evidence was offered to prove two of the statutory
criteria for such a commitment, i.e., that his commitment offense involved the use of
force or violence and that he had received at least 90 days of treatment during the year
prior to the BPH hearing. (§ 2962, subds. (c) & (e)(2)(P).) He claims that Dr. Kwartner's

                                              3
testimony to that effect, which was based on appellant's probation report, was
inadmissible hearsay and not the proper subject of expert testimony. In so arguing, he
urges us to disapprove our contrary conclusion in People v. Miller (1994) 25 Cal.App.4th
913 (Miller).
                After the briefs were filed in this case, we reaffirmed Miller's well-
established rule that "[a] qualified mental health professional may rely on a probation
report to render an opinion whether a defendant is an MDO." (People v. Stevens (2013)
213 Cal.App.4th 1401, 1403; see also People v. Valdez (2001) 89 Cal.App.4th 1013,
1017; People v. Campos (1995) 32 Cal.App.4th 304, 310.) We also made clear that each
of the MDO criteria—including the two at issue here—are the proper subject of expert
medical opinion testimony. (Stevens, at pp. 1403, 1407.) In doing so, we disagreed with
contrary dicta recently expressed by our colleagues in People v. Baker (2012) 204
Cal.App.4th 1234, 1246. (Stevens, at pp. 1406-1407.)2 "We explained in Miller that a
doctor can rely on reliable hearsay contained in a probation report in forming an expert
opinion as to 'force or violence,' or a threat thereof. If the opinion is too speculative, we
are confident that the trial court will not allow such opinion. We have explicated Miller
and have shown, legally and logically, why there is a 'mental health' component to each
of the MDO factors. In our view, the MDO procedures that we adopted in Miller have
served the prisoners and the People well for almost 20 years." (Stevens, at p. 1408.)


        2 We further note that the record also contains a computer printout from CLETS
reflecting that appellant was convicted of assault with a deadly weapon. Aside from
appellant's failure to object to this document, it was admissible to prove the conviction
under the official records exception to the hearsay rule. (People v. Morris (2008) 166
Cal.App.4th 363, 367.) Although assault with a deadly weapon is not among the crimes
expressly enumerated under the MDO law, the crime is, by definition, one involving the
use of force or violence. (In re Mosley (1970) 1 Cal.3d 913, 919, fn. 5 ["Section 245 . . .
defines only one offense, to wit, 'assault upon the person of another with a deadly weapon
or instrument or by any means of force likely to produce great bodily injury . . . .' The
offense of assault by means of force likely to produce great bodily injury is not an offense
separate from . . . the offense of assault with a deadly weapon"].) The CLETS sheet is
thus sufficient to prove that appellant's commitment offense qualifies him for MDO
treatment. (§ 2962, subd. (e)(2)(P).)
                                               4
Appellant offers nothing to convince us otherwise. Accordingly, his claim of insufficient
evidence fails.
              The judgment (order of commitment) is affirmed.
              NOT TO BE PUBLISHED.




                                         PERREN, J.


We concur:



              GILBERT, P. J.



              YEGAN, J.




                                            5
                              Teresa Estrada-Mullaney, Judge

                       Superior Court County of San Luis Obispo

                            ______________________________


             Gerald J. Miller, under appointment by the Court of Appeal, for Defendant
and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Eric J. Kohm, Deputy Attorney General, for
Plaintiff and Respondent.




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