Filed 1/14/15 P. v. Moreno CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059742

v.                                                                       (Super.Ct.No. FELSS1300774)

VICTORIA MORENO,                                                         OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Steve Malone,

Judge. Affirmed.

         Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H.

Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

         Defendant and appellant Victoria Moreno appeals from the trial court’s finding

that she met the criteria of a mentally disordered offender (MDO). We affirm.

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                      FACTUAL AND PROCEDURAL BACKGROUND

         On September 16, 2009, defendant stabbed a child several times in the chest and

then fled the scene. She was convicted of assault with a deadly weapon. (Pen. Code,

§ 245, subd. (a)(1).)1 On August 21, 2011, defendant was sentenced to two years in state

prison. On February 28, 2012, the Board of Prison Terms (BPT) determined that she met

the criteria of having a severe mental disorder (§ 2962) and required her to accept

treatment through the State Department of Mental Health as a condition of parole. The

BPT reaffirmed the special condition of parole on June 22, 2012. On January 30, 2013,

the BPT found that defendant had a severe mental disorder that was not in remission or

could not be kept in remission without treatment.

         On February 27, 2013, defendant filed a petition with the trial court challenging

the BPT’s determination that she met the criteria of section 2962 on January 30, 2013.

(§ 2966, subd. (b).) Both parties waived a jury trial. Defendant waived her appearance at

several hearings. Her counsel appeared and waived time on her trial several times.

         A court trial was conducted on September 13, 2013. The prosecution presented

Dr. Lauren Stevenson to support its case. The parties stipulated that she was a

psychiatrist employed with Patton State Hospital (Patton), and that she qualified as an

expert in diagnosing whether individuals meet the criteria of an MDO, pursuant to section

2962. Dr. Stevenson testified that she had been defendant’s treating psychiatrist since her

arrival at Patton, over one year before the trial. Dr. Stevenson conducted the initial

         1   All further statutory references will be to the Penal Code, unless otherwise
noted.


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evaluation of defendant and diagnosed her with bipolar-type schizoaffective disorder, as

well as methamphetamine dependencies and a “ruleout diagnosis of borderline

intellectual functioning.” Defendant had a long history of involuntary hospitalizations in

the community, as well as multiple hospitalizations at Patton. The symptoms from her

disorder started in her early 20’s. (She was 29 years old at the time of the trial.) She

exhibited auditory hallucinations and had been seen responding to internal stimuli. She

told staff members she felt distressed about various voices she was hearing. She also had

a history of delusional beliefs she thought were true. For example, she felt that she had

been pregnant for three years. Defendant had thought disorder symptoms and had

difficulty formulating coherent thoughts. She also exhibited symptoms of rapid thoughts,

pressured speech, eccentric behaviors, and some grandiosity.

       Dr. Stevenson testified that, at the time of the January 30, 2013 hearing, defendant

had overt signs and symptoms of her condition, and her condition substantially impaired

her judgment. During the period before that hearing, defendant had approximately nine

different incidents of either threatening or assaultive behavior that surrounded impulsive

decisions to react to something. For example, in 2012, defendant entered a peer’s

bedroom and started punching her in the head. The next day, defendant became agitated

with the staff and approached them with a closed fist, while cursing. On several

occasions, she assaulted staff members and had to be placed in a five-point restraint.

When asked how these events were related to defendant’s condition, Dr. Stevenson said

that defendant’s auditory hallucinations were distressing for her, and they told her things

that led her to become more irritable and to act out against others. Defendant’s


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schizoaffective disorder also made her react impulsively and caused her to be aggressive

and unpredictable in her behavior. Although defendant had been steadily improving over

time, Dr. Stevenson said her insight remained poor.

       Dr. Stevenson also described defendant’s underlying criminal offense, which

occurred in 2009. Defendant went to a house and asked if a certain woman lived there.

The resident said the woman did not live there and asked defendant to leave. Defendant

left the home, but did not leave the premises. The resident’s 11-year-old nephew was

playing in the front yard, and defendant stabbed him several times in the chest area, then

fled the scene. Dr. Stevenson said defendant never acknowledged that offense. When

asked if defendant was under the influence of her symptoms when she committed the

assault, Dr. Stevenson answered that since she did not evaluate defendant at that time, she

did not know “with complete certainty.” However, in her professional opinion, Dr.

Stevenson said that she was. Dr. Stevenson had read the reports on the incident and

noted that defendant acted impulsively and irrationally, and that her actions were similar

to the way she acted at the hospital. Dr. Stevenson concluded that defendant represented

a substantial danger of physical harm to others due to her schizoaffective disorder.

       Defendant presented no evidence. The People moved to dismiss defendant’s

petition. Based on Dr. Stevenson’s testimony, the court found beyond a reasonable doubt

that at the time of the January 30, 2013 hearing before the BPT, defendant had a severe

mental disorder, specifically schizoaffective bipolar type. The court found that the severe

mental disorder was not in remission or could not be kept in remission at the time of the

hearing without continued treatment. The court further found that, because of her mental


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disorder, defendant represented a substantial danger of physical harm to others. Thus, the

court denied defendant’s petition and confirmed the extension of her MDO commitment.

                                        ANALYSIS

  There Was Substantial Evidence to Support the Trial Court’s Finding That Defendant

                                       Was an MDO

       Defendant contends there was insufficient evidence to support the trial court’s

findings that she met the MDO criteria on January 30, 2013. She specifically claims

there was no evidence that her current mental disorder was a cause or aggravating factor

in committing her underlying crime. She also claims that the evidence presented by the

prosecution at the trial was stale and did not show that she currently posed a serious

threat of physical harm to other people. She further argues there was no substantial

evidence that her mental disorder caused a volitional impairment that made it difficult to

control her dangerous behavior. Thus, defendant asserts that we must reverse the

judgment of the lower court upholding the BPT’s finding. We disagree.

       A. Standard of Review

       “A determination that a defendant requires treatment as an MDO rests on six

criteria, set out in section 2962: the defendant (1) has a severe mental disorder; (2) used

force or violence in committing the underlying offense; (3) had a disorder which caused

or was an aggravating factor in committing the offense; (4) the disorder is not in

remission or capable of being kept in remission absent treatment; (5) the prisoner was

treated for the disorder for at least 90 days in the year before being paroled; and

(6) because of the disorder, the prisoner poses a serious threat of physical harm to other


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people.” (People v. Clark (2000) 82 Cal.App.4th 1072, 1075-1076 (Clark) [Fourth Dist.,

Div. Two].)

       “In considering the sufficiency of the evidence to support MDO findings, an

appellate court must determine whether, on the whole record, a rational trier of fact could

have found that defendant [was] an MDO beyond a reasonable doubt, considering all the

evidence in the light which is most favorable to the People, and drawing all inferences the

trier could reasonably have made to support the finding. [Citation] ‘“‘Although we must

ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the

exclusive province of the trial judge or jury to determine the credibility of a witness and

the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if

the [finding] is supported by substantial evidence, we must accord due deference to the

trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact

finder. . . .’ [Citation.]”’ [Citations.]” (Clark, supra, 82 Cal.App.4th at pp. 1082-1083.)

       B. There Was Sufficient Evidence That Defendant’s Mental Disorder at the Time

of the Hearing Was a Cause or Aggravating Factor in Her Underlying Offense

       Defendant first claims there was insufficient evidence establishing that her current

mental disorder was the same mental disorder that caused or was an aggravating factor in

her committing the underlying offense. We disagree.

       “A qualified expert is entitled to render an opinion on the criteria necessary for an

MDO commitment, and may base that opinion on information that is itself inadmissible

hearsay if the information is reliable and of the type reasonably relied upon by experts on

the subject. [Citations.]” (People v. Dodd (2005) 133 Cal.App.4th 1564, 1569.) Here,


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Dr. Stevenson unequivocally testified that defendant had a severe mental disorder. She

was an undisputed expert in determining whether or not individuals met the criteria of an

MDO, pursuant to section 2962. Dr. Stevenson specifically diagnosed defendant with

bipolar-type schizoaffective disorder. She described the nature of schizoaffective

disorder as including a combination of psychosis and mania with symptoms, such as

rapid thoughts, pressured speech, eccentric behavior, and grandiosity. Defendant also

had auditory hallucinations, delusional beliefs, and thought disorder symptoms. When

specifically asked if she believed defendant was under the influence of her symptoms

when she committed the 2009 assault, Dr. Stevenson replied, “I do.” She made clear that

her opinion could not be made with “complete certainty,” since she had not evaluated

defendant at the time of the attack. However, in her professional opinion, Dr. Stevenson

believed defendant was acting under the influence of her disorder symptoms. Dr.

Stevenson explained that defendant was acting irrationally and impulsively at the time of

the 2009 stabbing attack on a child. Dr. Stevenson testified that defendant’s behavior

was consistent with the behavior she had observed during her treatment of defendant at

Patton.

      Defendant contends there was no “real evidence that [her current] mental disorder

was the same as that present at the time of the 2009 commitment offense.” She claims

that she had multiple diagnoses and exhibited multiple symptoms over the years.

However, the evidence showed that, upon her initial arrival at Patton, defendant was

diagnosed with bipolar-type schizoaffective disorder. Throughout her testimony, Dr.

Stevenson referred to the condition as defendant’s “disorder.” She did not indicate that


                                            7
defendant had multiple disorders. Defendant’s diagnosis and treatment was consistently

for her schizoaffective disorder. Accordingly, Dr. Stevenson testified that, as of January

30, 2013, defendant represented a substantial danger of physical harm to others “due to

her [s]chizoaffective disorder.” Although there was evidence that defendant exhibited

multiple symptoms, they were all related to her schizoaffective disorder. Furthermore, in

light of the evidence that defendant’s behavior at the time of the 2009 assault was

consistent with her behavior at Patton, there was no reason for the trial court to believe

that her current mental disorder was not the same disorder that was an aggravating factor

in the assault.

        C. The Trial Court Considered the Proper Evidence and Made a Proper Finding

        Defendant contends that, because of the delays agreed to by her counsel, the

evidence presented by the People at the September 13, 2013 trial was stale, since it was

limited to her condition and behavior in the 12 months preceding the BPT hearing, which

occurred on January 30, 2013. She believes the court should have considered evidence

regarding her condition and improvement after the BPT hearing. Since the court did not

do so, defendant argues that it ordered her continued commitment without a finding of

her current dangerousness. We conclude that the court made a proper finding at the time

of the trial.

        The BPT determined that defendant met the criteria of section 2962 on January 30,

2013. (§ 2966, subd. (b).) The trial on the petition challenging that finding took place on

September 13, 2013. The purpose of the September 13, 2013 hearing was to give

defendant an opportunity to challenge the BPT determination that she met the criteria of


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section 2962 as of the date of the BPT hearing. (§ 2966, subd. (b).) Thus, the court could

only consider the evidence that was available to the BPT. Section 2966, subdivision (b),

expressly provides that “[e]vidence offered for the purpose of proving the prisoner’s

behavior or mental status subsequent to the Board of Prison Terms hearing shall not be

considered.” (Italics added.) Therefore, the trial court was not permitted to consider any

evidence regarding defendant’s mental condition that existed after the January 30, 2013

BPT hearing.

       In support of her claim that the court was required to determine her current

dangerousness at the September 30, 2013 trial, defendant cites People v. Bennett (1982)

131 Cal.App.3d 488 (Bennett), People v. Merfield (2007) 147 Cal.App.4th 1071

(Merfield), and In re Brian J. (2007) 150 Cal.App.4th 97 (Brian J.). However, none of

those cases stand for the proposition that a trial court must review the BPT’s finding that

a defendant met the criteria of an MDO based on evidence of the defendant’s mental

condition at the time of the review hearing. (Bennett, supra, 131 Cal.App.3d at p. 497;

Brian J., supra, 150 Cal.App.4th at pp. 128-129; Merfield, supra, 147 Cal.App.4th at

pp. 1074-1075.)

       Defendant also complains that delays in the proceedings were “unwarranted” since

her appointed counsel waived time without her personal consent. However, section 2966,

subdivision (b), provides that “[t]he court shall conduct a hearing on the petition within

60 calendar days after the petition is filed, unless either time is waived by the petitioner

or his or her counsel, or good cause is shown.” (Italics added.) Thus, no personal waiver

was needed to waive time. Defendant argues that “decisional authority allowing counsel


                                              9
to waive time without the client’s agreement runs afoul of due process.” She cites this

court’s decision in People v. Montoya (2001) 86 Cal.App.4th 825 [Fourth Dist., Div.

Two] (Montoya)), and asks us to reconsider the holding in that case. However, Montoya

concerned the right to waive a jury trial, not the right to waive time. (Id. at pp. 828-832.)

In any event, the Legislature has made clear that a petitioner’s counsel can waive time in

an MDO proceeding under section 2966. (§ 2966, subd. (b).)

       We conclude that the court considered the proper evidence at the September 30,

2013 review hearing.

       D. There Was Sufficient Evidence That Defendant Represented a Substantial

Danger of Physical Harm to Others

       Defendant finally argues there was insufficient evidence that she had a mental

disorder that caused a volitional impairment that made it difficult or impossible for her to

control her dangerous behavior. Defendant’s entire discussion is based on a faulty

premise. She relies on Kansas v. Hendricks (1997) 521 U.S. 346; Kansas v. Crane

(2002) 534 U.S. 407, In re Howard N. (2005) 35 Cal.4th 117 (Howard N.), and Hubbart

v. Superior Court (1999) 19 Cal.4th 1138 (Hubbart). However, these cases are

inapposite because they involve the civil commitment of defendants under the Kansas

Sexually Violent Predators Act and/or the nearly identical California Sexually Violent

Predators Act (collectively, the SVPA). (Hubbart, supra, 19 Cal.4th at p. 1158, fn 24.)

The SVPA explicitly requires the finding of a mental abnormality that makes it difficult

for the person to control his or her dangerous behavior. (Hendricks, supra, 521 U.S. at

p. 358; Crane, supra, 534 U.S. at pp. 409-411; Hubbart, supra, 19 Cal.4th at p. 1158.)


                                             10
Simply stated, the SVPA is a different statutory scheme from the MDO statutes under

which defendant’s commitment was extended. (People v. Putnam (2004) 115

Cal.App.4th 575, 581.) With regard to the element at issue, the MDO law only requires a

finding that “the prisoner represents a substantial danger of physical harm to others.”

(§ 2962, subd. (d)(1); see also Clark, supra, 82 Cal.App.4th at pp. 1075-1076.) Thus,

contrary to defendant’s claim, there is no statutory requirement of a finding of difficulty

to control dangerous behavior, as in the SVPA.

       We further note there was ample evidence from which the court could have

concluded that defendant posed a serious threat of physical harm to others.

Dr. Stevenson testified as to several specific incidents in 2012 when defendant became

physically aggressive with either hospital staff members and/or a fellow patient, as a

result of her mental disorder. Dr. Stevenson definitively testified that defendant

represented a substantial danger of physical harm to others, due to her schizoaffective

disorder.

       Ultimately, the evidence supporting defendant’s extended MDO commitment

consisted of the expert witness, Dr. Stevenson, whom the court found to be credible. We

must accord due deference to the court’s evaluation of credibility. (Clark, supra, 82

Cal.App.4th at p. 1083.) Thus, viewing the evidence in the light most favorable to the

People, we conclude that there was sufficient evidence to support the extension of

defendant’s commitment.




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                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                               HOLLENHORST
                                                             J.


We concur:


RAMIREZ
                    P. J.


MILLER
                       J.




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