Filed 8/21/19
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                             DIVISION SIX


THE PEOPLE,                                2d Crim. No. B293047
                                        (Super. Ct. No. 18PT-00615)
     Plaintiff and Respondent,           (San Luis Obispo County)

v.

JAMES PAUL TORFASON,

     Defendant and Appellant.


             In this case we decide whether a mentally disordered
offender (MDO) can be recommitted for treatment of a different
mental disorder than the one which formed the basis of the
original commitment. We conclude that a recommitment order
must be based on the same mental disorder that was the basis for
the original commitment.
             James Torfason appeals an order recommitting him
to the California Department of Mental Health as an MDO. (Pen.
Code,1 § 2966, subd. (c).) He contends the recommitment order
must be reversed because it was based on a different disorder


        1   Further unspecified statutory references are to the Penal
Code.
than the disorder which formed the basis of his original
commitment as an MDO. We agree and reverse.
             FACTS AND PROCEDURAL HISTORY
             In 2017, the Board of Prison Terms (the Board) found
Torfason met the criteria for an MDO commitment under section
2962. At trial, the experts opined Torfason suffered from both
bipolar disorder and pedophilia. They opined he met all the
criteria for MDO commitment based on his bipolar disorder.
They opined that he did not meet the criteria based on his
pedophilic disorder because he did not receive at least 90 days
treatment for that disorder. (§ 2962.) The trial court found
Torfason met the criteria for an MDO commitment based on his
bipolar disorder. We affirmed the order. (People v. Torfason
(Apr. 17, 2018, B286335 [nonpub. opn.].)
             In 2018, the Board found Torfason met the
requirements for recommitment as an MDO. Dr. Dia
Gunnarsson, a forensic psychologist at Atascadero State
Hospital, opined Torfason suffered from bipolar disorder and
pedophilia. Based on Torfason’s statements in his interview and
his medical record, Gunnarsson opined that Torfason’s bipolar
disorder was in remission.
             Gunnarsson opined that Torfason’s pedophilia was
not in remission. She testified that Torfason lacked insight into
his diagnosis, did not complete his group therapy treatment, and
had no viable relapse prevention plan. She opined that Torfason
posed a substantial risk of harm to others because of his
pedophilic disorder.
             The trial court found the criteria under section 2962
to be true and recommitted him to the California Department of




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Mental Health for further treatment based on the pedophilic
disorder.
                             DISCUSSION
              Torfason contends the trial court erred when it
recommitted him as an MDO based on his pedophilic disorder.
We agree.
              Torfason’s claim raises an issue of statutory
interpretation that we review de novo. (People v. Morales (2018)
25 Cal.App.5th 502, 509.) When interpreting a statute, we first
examine the plain language of the statute, “giving the words their
usual, ordinary meaning.” (People v. Canty (2004) 32 Cal.4th
1266, 1276.) “The language is construed in the context of the
statute as a whole and the overall statutory scheme, and we give
‘significance to every word, phrase, sentence, and part of an act in
pursuance of the legislative purpose. [Citation.]’ [Citations.]”
(Ibid.)
              The Mentally Disordered Offender Act (MDO Act;
§ 2960 et seq.) provides a comprehensive scheme that provides
treatment at three stages of commitment: (1) as a condition of
parole (the initial commitment), (2) as an extension of parole
(recommitment), and (3) following release from parole. (Lopez v.
Superior Court (2010) 50 Cal.4th 1055, 1061 (Lopez), disapproved
on another ground in People v. Harrison (2013) 57 Cal.4th 1211,
1230, fn. 2.) Section 2960, which provides the legislative findings
and declarations for the MDO Act, states that the MDO Act’s
intent is to treat “the severe mental disorder which was one of
the causes of or was an aggravating factor” in the person’s
underlying crime.
              To initially commit a person for MDO treatment, the
prosecution must prove six criteria: (1) the individual must




                                 3
suffer from “a severe mental disorder”; (2) the disorder is not or
cannot be kept in remission; (3) the individual poses a risk of
substantial danger to others; (4) “[t]he severe mental disorder”
was a cause or an aggravating factor in committing the
underlying crime; (5) the individual committed a qualifying
offense pursuant to section 2962, subdivision (e); and (6) the
individual was treated for “[t]he severe mental disorder” for at
least 90 days within the year before release. (§ 2962, italics
added.) The first three criteria are “dynamic” criteria that are
“capable of change over time,” and the last three are “‘static’”
criteria that are incapable of change over time. (Lopez, supra, 50
Cal.4th at p. 1062.) Use of the word “the” in subdivisions (b) and
(c) to refer to the severe mental disorder makes clear that all six
criteria must be met with respect to the same mental disorder.
(People v. Sheek (2004) 122 Cal.App.4th 1606, 1611 [section 2962
plainly states that treatment must be for “‘the’” severe mental
disorder, and therefore “bootstrap[ping]” the 90 days treatment
received for a different mental disorder does not satisfy the
criteria for initial commitment for another mental disorder].)
              Section 2966, subdivision (c) governs recommitment
proceedings. It provides that if the Board “continues a parolee’s
mental health treatment under [s]ection 2962,” the parolee may
request a hearing before the Board and petition the superior
court to challenge the Board’s determination only to determine if
the dynamic criteria are satisfied, i.e., (1) the parolee has “a
severe mental disorder”; (2) which “is not in remission or cannot
be kept in remission without treatment,” and (3) the parolee
poses a “substantial danger of physical harm to others.” (§ 2966,
subd. (c); Lopez, supra, 50 Cal.4th at pp. 1062-1063.)




                                 4
             We interpret the plain language of section 2966,
subdivision (c) to mean that recommitment must be based on the
same mental disorder on which the parolee was initially
committed. The use of the word “continues” and the reference to
section 2962 both demonstrate that the Legislature meant a
continuation of treatment of the same mental disorder that was
found to be the basis for commitment and treatment originally.
             The People argue that “a severe mental disorder” in
section 2966, subdivision (c) means any mental disorder. (Italics
added.) But we do not read section 2966 in a vacuum. “It is part
of a progressive scheme,” that is intended to commit an
individual for treatment of the disorder that was found to be a
cause or aggravating factor in the commission of the underlying
crime. (People v. Crivello (2011) 200 Cal.App.4th 612, 617
(Crivello).)
             Moreover, at the recommitment stage, the trial court
cannot make a finding that the underlying crime was caused or
aggravated by a different mental disorder than the one which
formed the basis of the initial commitment. That is a static
criterion, which is not subject to change over time. (Crivello,
supra, 200 Cal.App.4th at p. 617.) The static criteria involve only
past events, and the parties “ha[ve] but one opportunity” at the
initial commitment proceeding to prove whether the static
criteria are met. (People v. Merfield (2007) 147 Cal.App.4th 1071,
1076.) A determination regarding any of the static criteria is
binding on further proceedings and cannot be relitigated.
(Crivello, at p. 617.) “Thus, where a trial court has found that a
severe mental disorder was not an aggravating factor in the
commission of the crime, the People are precluded” from seeking
recommitment on a different mental disorder. (People v. Francis




                                5
(2002) 98 Cal.App.4th 873, 879; see ibid. [prosecution precluded
from seeking a second MDO determination based on the same
underlying offense].)
             Our interpretation of section 2966, subdivision (c) is
also supported by People v. Garcia (2005) 127 Cal.App.4th 558.
There, the defendant was initially diagnosed with schizoaffective
disorder, and pursuant to section 2962, he was treated for that
disorder for three years. (Id. at p. 562.) Despite the treating
staff concluding the defendant’s disorder was in remission, the
prosecutor filed a petition to extend the commitment pursuant to
section 2970 and presented evidence that the defendant suffered
from pedophilia. (Id. at p. 563.) The Court of Appeal held that
the prosecutor did not have the independent power under section
2970 to initiate MDO proceedings. But even if it did, the
evidence that the defendant suffered from pedophilia was
inadequate for continued treatment. (Id. at p. 567.) The court
reasoned that the “mental disorder for which extended
involuntary treatment is sought must be the same mental
disorder for which [the] defendant was treated as a condition” for
parole. (Ibid.) Evidence of a new mental disorder “for which
[the] defendant had never received treatment” could not serve as
the basis of continued treatment. (Ibid.)
             Similarly here, Torfason’s pedophilia could not serve
as the basis for recommitment because it is not the same mental
disorder for which he was committed under section 2962.




                                 6
                        DISPOSITION
             The judgment (order of recommitment) is reversed.
             CERTIFIED FOR PUBLICATION.


                                    TANGEMAN, J.
We concur:



             GILBERT, P. J.


             YEGAN, J.




                                7
                 Hernaldo J. Baltodano, Judge

           Superior Court County of San Luis Obispo

                ______________________________


            Gerald J. Miller, 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, Michael C. Keller and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.
