Filed 10/16/14 P. v. Woodward 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                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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. B254986
                                                                            (Super. Ct. No. 14PT-00038)
     Plaintiff and Respondent,                                               (San Luis Obispo County)

v.

DAVID WOODWARD,

     Defendant and Appellant.



                   David Woodward appeals from the judgment, after a court trial, finding
that he is a mentally disordered offender (MDO) within the meaning of Penal Code
section 29621 and recommitting him to the California Department of Mental Health for
treatment. Prior to trial, the Board of Prison Hearings (BPH) held two hearings to
review appellant's MDO status. At the first hearing, the BPH deputy commissioner
who conducted the hearing found that appellant did not meet the MDO criteria. The
Chief Deputy Commissioner of the BPH rescinded that finding and ordered a second
annual review hearing. At that hearing, the BPH found appellant was an MDO.
Appellant contends the BPH lacked authority to hold the second hearing. The trial
court found appellant met the MDO criteria at the time of the second hearing and
ordered him committed for further treatment. We affirm.

1
    All statutory references are to the Penal Code unless otherwise stated.
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                                          Facts
              In December 2009, appellant was convicted of resisting an executive
officer with force or violence (§ 69) after a physical confrontation with a woman from
whom he had previously rented a room. In 2011, appellant was convicted of setting
fire to an inhabited structure. (§ 452, subd. (b).) He was transferred to Atascadero
State Hospital in November 2012, as a mentally ill inmate and initially certified as an
MDO two days later. (§§ 2684, 2962.)
              Kevin Perry, Ph. D., a forensic psychologist, conducted appellant's
annual MDO evaluation in November 2013. Although he concluded that appellant
suffers from the severe mental disorder of schizoaffective disorder, bipolar type, Perry
also opined that appellant's symptoms are controlled by medication and can be kept in
remission without treatment. He further opined appellant did not represent a
substantial danger of physical harm to others by reason of his mental illness.
              Perry's opinions were based on a clinical interview with appellant and on
his review of appellant's Department of Corrections record and the hospital progress
notes relating to appellant's treatment. During the interview, appellant presented with
logical, linear thought processes. His mood, behavior and speech were appropriate to
the situation. Appellant did not express any delusional ideas or other exhibit manic,
paranoid or psychotic symptoms. Appellant's hospital records indicated he had not
had a manic episode for more than six months. Although he experienced some
auditory hallucinations in mid-September, these symptoms appeared to have resolved
by the time of the evaluation. In addition, appellant had not been violent or
threatening during the past year. He attended most of his scheduled group therapy
sessions and took his medications as prescribed.
              Appellant had engaged in some bizarre and violent behavior prior to his
hospitalization, including one incident in prison during which he managed to pepper
spray corrections officers during a cell extraction. In June 2012, appellant was placed
in a mental health cell block. At that time, he was engaging in disorganized behaviors
"including standing naked in his cell and drinking water out of his toilet and off of the

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floor. He also made delusional statements about having 'special powers' at the time,
and claimed to be persecuted by prison staff . . . ."
              Since his hospitalization, however, appellant's symptoms were well
controlled and he had not engaged in violent behavior. He had been compliant with
treatment and demonstrated "good insight into his mental disorder and need for
treatment." Dr. Perry concluded appellant no longer met the statutory criteria for
recommitment as an MDO "because his symptoms are controlled, he has been
compliant with treatment, and has not been violent or threatening during the past
year."
              On January 8, 2014, the BPH conducted appellant's annual review
hearing. After Dr. Perry testified, the BPH deputy commissioner relied on his
testimony to find that appellant no longer met the MDO criteria. The deputy
commissioner recommended that appellant be released to community parole.
              Appellant was not, however, released to community parole. Instead, on
January 23, 2014, the Chief Deputy Commissioner of the BPH vacated the
recommendation and scheduled the matter for a new hearing on February 25, 2014.2
Dr. Perry learned from appellant's treatment providers that appellant experienced
"active psychotic symptoms" during the month of February by expressing delusional
beliefs and reporting auditory hallucinations. In addition, appellant had a physical
altercation with another patient at the hospital, requiring that he be placed in full-bed
restraints. Dr. Perry conducted another review of appellant's treatment records and
composed a new report for the February 25 BPH hearing. At that hearing, Dr. Perry
testified that, based primarily on appellant's behavior and condition in February, his


2
 Appellant augmented the record on appeal with Dr. Perry's first evaluation report and
the deputy commissioner's recommendation from the January 8, 2014 hearing. Our
record does not, however, include: the BPH order vacating the January 8, 2014
recommendation and scheduling the matter for a second hearing; the second evaluation
report prepared by Dr. Perry; or the BPH order after the February 25, 2014 hearing.
Consequently, the record on appeal allows us only to summarize Dr. Perry's testimony
concerning the second evaluation, BPH hearing and resulting order.
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severe mental disorder was not in remission and he posed a substantial danger of
physical harm to others by reason of that disorder. The BPH recommitted appellant as
an MDO for an additional year of treatment.
              In the interim between the first and second BPH hearings, appellant
petitioned the superior court for a trial to review his recommitment for MDO
treatment. At the court trial, Dr. Perry testified, consistently with his February 2014
report, that appellant met the MDO criteria because he had recently experienced
psychotic symptoms and had been violent with another patient. The trial court ordered
appellant recommitted to the Department of Mental Health for treatment after finding
that appellant met the MDO criteria as of the time of the February 25 BPH hearing.
                                        Discussion
              Appellant contends the trial court's order should be reversed because the
BPH acted "improperly and illegally" when it rescinded its first recommendation and
held a second hearing, resulting in the February 25, 2014 order for further treatment.
He further contends the BPH violated his due process rights when it held the second
hearing.
              "Commitment as an MDO is not indefinite; instead, '[a]n MDO is
committed for . . . one-year period[s] and thereafter has the right to be released unless
the People prove beyond a reasonable doubt that he or she should be recommitted for
another year.' (Citaion.)" (Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1063,
quoting People v. McKee (2010) 47 Cal.4th 1172, 1202.) If the BPH decides to
continue an individual's parole beyond the initial one-year commitment period, the
parolee "may request a hearing before the [BPH], and the board shall conduct a
hearing if so requested, for the purpose of proving that the prisoner meets the [MDO]
criteria in Section 2962." (§ 2966, subd. (a), (c).) If the parolee is not satisfied with
the result of the BPH hearing, he or she may request a trial in the superior court to
determine whether he or she met the MDO criteria as of the date of the BPH hearing.
(§ 2966, subd. (b).)


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              The BPH has promulgated administrative regulations governing this
annual review hearing process. Title 15, section 2580 of the Code of Regulations
governs the annual review hearing itself. (Cal. Code Regs., tit. 15, § 2580.) Section
2041, subdivision (d) of the same title governs the BPH's decision making process. It
provides that the recommendation made after an MDO annual review hearing "shall be
reviewed by the chief deputy commissioner [of the BPH] or a designee. Within 20
days of the hearing, the chief deputy commissioner may: (i) affirm the proposed
decision, (ii) order a new hearing, or (iii) modify the decision without a new hearing.
No decision shall be modified without a new hearing if the modification would be
adverse to the interests of the parolee. If the chief deputy commissioner disapproves
the decision and orders a new hearing, the parolee shall be notified . . . ." (Cal. Code
Regs., tit. 15, § 2041, subd. (d).)
              We conclude the BPH did not act improperly or violate appellant's due
process rights when it rescinded the decision made after his first annual review hearing
and conducted a second hearing. Title 15, section 2041, subdivision (d) of the
California Code of Regulations expressly authorizes this procedure.
              Section 2966, subdivision (b) provides, "A prisoner who disagrees with
the determination of the [BPH] that he or she meets the criteria of Section 2962, may
file in the superior court . . . a petition for a hearing on whether he or she, as of the
date of the [BPH] hearing, met the criteria of Section 2962." Appellant contends the
trial court's recommitment order must be reversed because he filed his petition before
the second BPH hearing occurred and there is no substantial evidence he met the MDO
criteria as of the date of the first hearing. We are not persuaded. For the reasons
stated above, the recommendation made by the BPH deputy commissioner after
appellant's first review hearing was not the final determination of the BPH.
Appellant's prematurely filed petition for review in the superior court does not alter the
fact that the BPH completed its annual review at the February 25, 2014 hearing. The
trial court found that respondent "has met the required burden of proof beyond a
reasonable doubt that as of the time of the February 25 Board of Parole Hearings,

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[appellant] continued to meet all of the criteria under the MDO law and, accordingly,
he is recommitted for continuing treatment and his petition is denied." That finding is
consistent with Dr. Perry's testimony at the trial and is, therefore, supported by
substantial evidence.
                                       Conclusion
              The judgment and order dated March 4, 2014 affirmed.
              NOT TO BE PUBLISHED.


                                                         YEGAN, J.

We concur:



              GILBERT, P.J.



              PERREN, J.




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                           Teresa Estrada Mullaney, Judge
                      Superior Court County of San Luis Obispo
                        ______________________________
             Gerald J. Miller, under appointment by the Court of Appeal, fo
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, David A. Wildman, Deputy Attorney
General, for Plaintiff and Respondent.




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