Filed 4/18/13 P. v. Delacruz 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B244124
                                                                            (Super. Ct. No. F475517)
    Plaintiff and Respondent,                                               (San Luis Obispo County)
v.
FRANCES DELACRUZ,
    Defendant and Appellant.



                   Frances Delacruz appeals from an order committing him to the California
Department of State Hospitals (formerly Department of Mental Health) after the trial
court determined that he was a mentally disordered offender (MDO). (Pen. Code, § 2960
et seq.)1 Appellant contends that the evidence does not support the finding that his
commitment offense was a crime of force or violence or that he received 90 days of
treatment within a year prior to his parole or release date. (§ 2962, subds. (c) & (e).) We
affirm. (People v. Stevens (2013) 213 Cal.App.4th 1401.)
                                                Procedural History
                   Appellant suffers from a severe mental disorder, severe bipolar disorder
with psychotic features manifested by psychosis, paranoia, auditory hallucinations to kill
and rape people, and ideations that the television sends him special messages and hears
his thoughts. Doctor Phylissa Kwartner testified that appellant met all the MDO criteria
and that the 2010 commitment offense, possession of a firearm while under the influence
1
    All statutory references are to the Penal Code unless otherwise stated.
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of methamphetamine, was a crime of force or violence. The probation report stated that
appellant entered the victim's home with a loaded shotgun, screamed, and kneeled behind
a couch in a low ready to fire position endangering the victim, her one-year old child, and
the victim's stepfather.

              Doctor Kwartner testified that the mental disorder caused appellant to
behave in a threatening and violent manner and that appellant posed a substantial risk of
harm to others. After appellant was sentenced to state prison, he assaulted an inmate
based on the paranoid belief that the inmate was about to rape his son. Appellant was
transferred to Atascadero State Hospital where he threatened peers and staff and claimed
that he did not suffer from a mental disorder or need psychotropic medications. Doctor
Kwartner opined that the mental disorder was not in remission and that appellant's use of
drugs, especially methamphetamine, would make appellant more paranoid and violent.
                                Crime of Force or Violence
              Appellant argues that felony possession of a firearm is not a crime of force
or violence. To qualify as a commitment offense, the crime must be either listed in
section 2962, subdivision (e)(2)A) through (O), or come within the catchall provisions of
subdivision (e)(2)(P) or (e)(2)(Q); (People v. Kortesmaki (2007) 156 Cal.App.4th 922,
926.) Section 2962, subdivision (Q) includes a "crime in which the perpetrator expressly
or impliedly threatened another with the use of force or violence likely to produce
substantial physical harm in such a manner that a reasonable person would believe and
expect that the force or violence would be used. For purposes of this subparagraph,
substantial physical harm shall not require proof that the threatened act was likely to
cause great or serious bodily injury."
              Appellant argues that he did not shoot anyone but the probation report
states that an intentional or accidental discharge could have injured the victim.
Appellant was delusional, perceived a threat, entered the victim's house with a loaded
shotgun, assumed a ready to fire position, and refused to leave.


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               Appellant claims that he was merely trying to protect the victim. In People
v. Townsend (2010) 182 Cal.App.4th 1151, defendant suffered paranoid delusions and
armed himself with Molotov cocktail bombs to "protect" himself against "bad guys in the
neighborhood ." (Id., at p. 1154.) We held that possession of an incendiary device, when
viewed in context of defendant's paranoid beliefs and intention to use the device as a
weapon, constituted an implied threat of force or violence. (Id., at pp. 1156-1157.)
               The same principle applies here. Appellant suffered from paranoid
delusions, entered the victim's house with a loaded shotgun, kneeled down behind a
couch, and assumed a ready to fire position. The trial court reasonably concluded that
appellant's paranoid beliefs, viewed in the context of his intention to use the shotgun,
constituted an implied threat of force or violence within the meaning of the MDO Act.
               Citing People v. Baker (2012) 204 Cal.App.4th 1234 (Baker), appellant
argues that a mental health expert cannot opine on whether the commitment offense is a
crime of force or violence. We disagreed with Baker in People v. Stevens, supra, 213
Cal.App.4th at p. 1408 because it is well settled that a mental health expert can rely on a
probation report in rendering an MDO opinion. (See People v. Dodd (2005) 133
Cal.App.4th 1564, 1571; People v. Valdez (2001) 89 Cal.App.4th 1013, 1017.) Doctor
Kwanter's reference to the probation report was not offered for the truth of the facts stated
but as the basis for the doctor's expert opinion. (See People v. Stevens, supra, __
Cal.App.4th at p. 1401.) "The hearsay relied upon by an expert in forming his or her
opinion is "examined to assess the weight of the expert's opinion," not the validity of [its]
contents. [Citation.]' [Citation.]" (Ibid.)
               We reject the argument that the MDO commitment order is unsupported by
the evidence or violates appellant's due process rights. (See Jackson v. Virginia (1979)
443 U.S. 307, 319 [61 L.Ed.2d 560, 573-574]; People v. Otto (2001) 26 Cal.4th 200, 210
[victim hearsay statements contain special due process indicia of reliability].) "The
purpose underlying the MDO law is to protect the public by identifying those offenders
who exhibit violence in their behavior and pose a danger to society. [Citation.]" (People

                                              3
v. Dyer (2002) 95 Cal.App.4th 448, 455.) The evidence here shows that the commitment
offense involved an implied threat to harm others with the shotgun and that appellant, by
reason of his mental disorder, posed a substantial risk of harm to others. (See e.g, People
v. Kortesmaki (2007) 156 Cal.App.4th 922, 928 [threat to set fire to dumpster with bottle
of flammable fluid a crime of force or violence].)
                                    90 Days of Treatment
              Appellant argues that a mental health professional cannot opine on whether
a prisoner received 90 days of treatment for his or her mental disorder within the year
prior to the prisoner's parole or release. (§ 2962, subd. (c).) We rejected a similar
argument in People v. Stevens, supra, 213 Cal.App.4th at page 1407, on the ground that
medical records are reliable and "a doctor's interpretation of these records will 'assist' the
trier of fact in makings its determination. (Evid. Code, § 801, subd. (a).)" Doctor
Kwartner reviewed appellant's medical and hospital records and testified, without
objection, that appellant received the required 90 days of treatment. Appellant is
precluded from arguing, for the first time on appeal, that there is no factual or legal basis
for the expert testimony. (Evid. Code, §§ 353, 803; People v. Miller (1994) 25
Cal.App.4th 913, 917.)
              The judgment (MDO commitment order) is affirmed.
              NOT TO BE PUBLISHED.


                                                          YEGAN, J.
We concur:

              GILBERT, P.J.


              PERREN, J.




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                                  John A. Trice, 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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