Filed 12/10/15




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                              S209643
           v.                        )
                                     )                        Ct.App. 2/6 B241356
MARK STEVENS,                        )
                                     )                      San Luis Obispo County
           Defendant and Appellant.  )                      Super. Ct. No. F471357
____________________________________)


          The Mentally Disordered Offender Act (MDO Act) (Pen. Code, § 2960 et
seq.)1 authorizes proceedings for civil commitment of a state prisoner during
parole if a chief psychiatrist of the Department of Corrections and Rehabilitation
certifies to the Board of Parole Hearings (Board) that the prisoner has met the
following statutory criteria: (1) the prisoner has a severe mental disorder; (2) the
disorder is not in remission, or cannot be kept in remission without treatment; (3)
the disorder was one of the causes of or an aggravating factor in the commission
of the offense; (4) the prisoner was treated for the disorder for at least 90 days in
the year before being paroled; and (5) because of the severe mental disorder, the
prisoner presents a substantial danger of physical harm to other people. (§ 2962,
subd. (d)(1); see People v. Sheek (2004) 122 Cal.App.4th 1606, 1610 (Sheek).)
Additionally, civil commitment under the MDO Act requires that the underlying

1         All further statutory references are to the Penal Code unless otherwise
stated.
qualifying offense involve one of the offenses specified in section 2962,
subdivision (e)(2)(A) through (O) or be a felony involving behavior described in
subdivision (e)(2)(P) or (Q). For our purposes, the criminal behavior that qualified
defendant Mark Stevens (defendant) for MDO status involved a crime in which he
allegedly “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.” (§ 2962, subd. (e)(2)(Q).)
       Defendant, who the People contend committed the crime of petty theft with
a prior conviction (§ 666) with threats of force or violence, challenges his
commitment under the MDO Act. He asserts that the mental health expert‟s
testimony that defendant‟s offense involved the threat of force or violence likely to
produce physical harm to others under section 2962, subdivision (e)(2)(Q) was
inadmissible because the expert had no personal knowledge of the facts
surrounding defendant‟s crime or disorder. Defendant adds that the expert
erroneously testified about a topic that is not “sufficiently beyond common
experience that the opinion of an expert would assist the trier of fact.” (Evid.
Code, § 801, subd. (a).)
       We granted review to resolve the following question: Is a mental health
expert‟s opinion testimony in support of a defendant‟s commitment under the
MDO Act substantive independent proof that the defendant committed a
qualifying offense for commitment? We conclude that a mental health expert‟s
testimony in support of a defendant‟s MDO commitment may not be used to prove
the defendant committed a qualifying offense involving one of the offenses
specified in section 2962, subdivision (e)(2)(A) through (O) or involved behavior
described in subdivision (e)(2)(P) or (Q). We also hold that mental health experts
may not testify about a topic that is not “sufficiently beyond common experience

                                          2
that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801,
subd. (a).) Because the prosecution failed to present evidence other than its
mental health expert‟s opinion testimony and supporting foundational facts, and
because that expert improperly opined on a topic (defendant‟s threat of force or
violence) that is not beyond common experience, substantial evidence does not
support the trial court‟s finding on the MDO commitment. For reasons explained
below, we reverse the Court of Appeal judgment and remand the matter for further
proceedings consistent with our holding.
                   FACTUAL AND PROCEDURAL BACKGROUND
       1. Facts
       In San Diego County Superior Court in 2009, defendant was convicted of
petty theft with a prior theft-related conviction and was sentenced to 32 months in
state prison. (§ 666.) Before defendant‟s release on parole, the Department of
Corrections and Rehabilitation certified him as an MDO under section 2962,
subdivision (d). On March 2, 2012, the Board found that defendant met the
criteria for commitment as an MDO under section 2962, subdivisions (d)(1) and
(e)(2)(Q) (crime involving express or implied threat of force or violence). As was
his statutory right, defendant petitioned for a hearing in the San Luis Obispo
Superior Court under section 2966, subdivision (b), to challenge the Board‟s
determination. Defendant also waived a jury trial.
       At defendant‟s bench trial, held on April 24, 2012, Dr. Kevin Perry, a
clinical psychologist in the forensic services department at Atascadero State
Hospital, testified that he had conducted a forensic evaluation of defendant. The
parties stipulated that Dr. Perry, who had performed approximately 600 MDO
evaluations, was qualified as an expert witness on MDO Act criteria. In the course
of his evaluation, Dr. Perry reviewed defendant‟s Atascadero State Hospital
medical records, his prior MDO evaluations, and the probation officer‟s report that

                                           3
described the defendant‟s MDO Act qualifying offense. He also consulted with
defendant‟s treating psychologist about defendant‟s “behaviors and his progress
on the unit.” Dr. Perry approached defendant for an interview, but defendant
declined to be interviewed.
       Based on the information he obtained while evaluating defendant, Dr. Perry
testified he had reached the opinion that, as of March 22, 2012, defendant
“suffered from a severe mental disorder,” namely, “schizophrenia, undifferentiated
type.” Dr. Perry also testified that defendant‟s severe mental disorder “was at
least an aggravating factor” in the commission of his criminal act. When the
prosecutor asked Dr. Perry to describe the facts of the crime, defendant objected
on the grounds that “[t]his calls for hearsay. Not subject to opinion.” With no
ruling on the objection from the trial court, the prosecutor withdrew the question.
He then asked Dr. Perry on what he based his opinion “that [defendant‟s] severe
mental disorder was an aggravating factor in the commission of the crime.”
Defendant did not object to that question.
       Dr. Perry testified that he relied on defendant‟s probation officer‟s report,
which described the circumstances of the 2009 commitment offense as follows:
“[Defendant] was observed placing items at a drug store into his waistband and
pockets and then walking out of the store without paying. When loss prevention
officers then confronted him about that, [defendant] threatened to assault and to
kill the loss prevention agents. [¶] He, also, tried to push a shopping cart into one
of them. [Defendant] had only about $27 worth of merchandise.” Dr. Perry also
stated that defendant received 90 days or more of treatment for his disorder in the
year before his scheduled release on December 20, 2011, because he was in the
prison mental health services delivery system for the entire year. Dr. Perry noted
that “[defendant] has a history of aggressive and threatening behaviors during
periods of psychiatric instability.” Dr. Perry relied, in part, on the circumstances

                                          4
of the theft offense, noting that “to threaten someone‟s life and attempt to assault
them over such minor items, to me suggest[s] an irrational thought process.”
       The prosecutor asked Dr. Perry to explain why, in his opinion, defendant‟s
crime of petty theft with a prior theft-related conviction satisfied the MDO Act‟s
requirement that defendant‟s crime involve violence or threats of force or violence
likely to produce substantial physical harm, “even though petty theft with a prior is
not a crime by definition that involves force or violence that will cause serious
bodily injury.” Defense counsel objected on hearsay and foundational grounds,
and the trial court sustained the objection, noting that “I have testimony as to what
he has told us.” The prosecutor admitted no documents except a rap sheet
regarding the commitment offense.
       In his summation at the close of evidence, defense counsel argued that the
prosecutor presented insufficient evidence of defendant‟s MDO qualifications for
two reasons. First, defendant‟s crime of petty theft with a prior was not one of the
offenses enumerated in section 2962, subdivision (e). Second, apart from the
hearsay evidence on which Dr. Perry relied, there was no evidence that defendant
had threatened force or violence in the crime, as required under section 2962,
subdivision (e)(2)(Q). When the trial court countered that defense counsel failed
to object to Dr. Perry‟s testimony on that point, counsel explained that he did not
object because he believed the testimony was admitted only as foundation for Dr.
Perry‟s opinion that defendant‟s severe mental disorder caused or was an
aggravating factor in his committing the offense. The prosecutor stated that
because “the testimony came in without objection,” it amounted to substantial
evidence to support the MDO finding.
       Petty theft with a prior is not inherently a crime of force or violence. But
the trial court apparently concluded that because the offense involved “threats of
great harm to others,” defendant‟s threats and violent acts in committing that

                                          5
offense came within the “force or violence” provision of the MDO Act. The court
also ruled that defendant met the 90-day treatment requirement of section 2962,
subdivision (c) because his severe mental disorder was not in remission as of
March 2, 2012. Eventually, and for reasons that are not entirely clear on the
record, the court concluded that defendant met all the necessary MDO Act criteria
specified in section 2962. Defendant appealed.
       2. Court of Appeal Decision
       After concluding defendant had waived any objection to his MDO
proceedings, the Court of Appeal affirmed defendant‟s commitment order. The
court held that mental health experts may rely on hearsay reports or other reliable
documents as substantive proof that a defendant committed a commitment offense
under the MDO Act because the testimony is not offered for the truth of the facts
stated, but rather as the basis for the mental health expert‟s opinion. (See, e.g.,
People v. Cooper (2007) 148 Cal.App.4th 731, 747 [experts may rely on and
testify to sources on which opinions are based, including hearsay].) The Court of
Appeal relied principally on People v. Miller (1994) 25 Cal.App.4th 913, 917-918
(Miller), which held that a psychiatrist‟s evaluation testimony may be based on a
review of a defendant‟s probation report. The court opined that before Miller,
prosecutors essentially “revictimized” crime victims by having them testify in
defendants‟ MDO hearings about the acts committed against them. The court
reasoned that Miller‟s rule simply allows mental health experts to consult reliable
documents and focus “on the prisoner‟s mental health and potential threat to the
public.”
       Defendant urges us to reject Miller and rely on People v. Baker (2012) 204
Cal.App.4th 1234 (Baker), which criticized Miller. Baker held that although
mental health experts may rely on hearsay to support their opinions regarding
causation, the prosecution may not rely on expert opinion testimony as

                                           6
independent proof of the facts surrounding the crime or to support a finding that
the crime involved force or violence under the MDO Act. (Baker, supra, 204
Cal.App.4th at p. 1245, fn. 9.) In rejecting this argument, the Court of Appeal
criticized Baker, in that it would require the People to produce eyewitness
testimony on the nature of the MDO Act offense, and thus would subvert the very
purpose of MDO Act procedures.
                                    DISCUSSION
       1. The MDO Act
       “Enacted in 1985, the MDO Act requires that an offender who has been
convicted of a specified felony related to a severe mental disorder and who
continues to pose a danger to society receive appropriate treatment until the
disorder can be kept in remission.” (People v. Harrison (2013) 57 Cal.4th 1211,
1218 (Harrison) [adjudicating challenge to MDO Act procedure and noting that
MDO Act‟s procedural requirements are distinct from statute‟s substantive
criteria].) The MDO Act‟s purpose is to protect the public while treating severely
mentally ill offenders. (Harrison, at p. 1218.) An initial commitment under the
MDO Act occurs as a condition of parole, and is triggered by a certification by a
chief psychiatrist of the Department of Corrections and Rehabilitation that the
prisoner has a severe mental disorder that is not in remission, was sentenced to
prison, has been in treatment for the disorder for 90 days or more within the year
preceding release on parole, that the disorder was one of the causes of, or an
aggravating factor in, defendant‟s criminal behavior, and represents a substantial
danger of physical harm to others because of the disorder. (§ 2962, subd. (d)(1);
see Harrison, supra, 57 Cal.4th at p. 1218.)
       A prisoner may challenge the mental health professional‟s certification as
follows: The prisoner can request a hearing before the Board pursuant to section
2966, subdivision (a); if the prisoner disagrees with the Board‟s determination that

                                         7
he meets the MDO Act criteria, he may file a petition for a hearing in superior
court to challenge that determination. (§ 2966, subd. (b).) Although the MDO
statutes are placed in the Penal Code, the superior court hearing is civil in nature,
and the rules of both civil and criminal discovery apply. (Ibid.; People v.
Cosgrove (2002) 100 Cal.App.4th 1266, 1270-1273.) But once the defendant files
a petition, the People have the burden of establishing to the trier of fact that the
defendant qualifies for MDO status under section 2962‟s criteria beyond a
reasonable doubt. (§ 2966, subd. (b); see Sheek, supra, 122 Cal.App.4th at p. 1611
[People failed to prove defendant was in treatment for 90 days within the year
prior to his release].)
       Defendant challenges the Court of Appeal‟s judgment, contending here that
the trial court improperly relied on Dr. Perry‟s testimony about the content of the
probation officer‟s report, medical records, and prior mental health evaluations to
find defendant met two of the MDO Act‟s statutory criteria for commitment: the
90-day treatment requirement (§ 2962, subds. (c) & (d)(1)), and the requirement
that his crime involved threats of force or violence (§ 2962, subd. (e)(2)(Q)). He
reasons that Evidence Code section 801, subdivision (b), limits expert testimony to
matters within the expert‟s special knowledge or skill and made known to him at
or before the hearing. Consequently, defendant claims that the People may not
rely on an expert‟s having read his probation or medical records to establish that
he met the MDO‟s force or violence element he challenges here. (Baker, supra,
204 Cal.App.4th at p. 1245, fn. 9.) Defendant additionally relies on Evidence
Code section 801, subdivision (a), which states that an expert may provide opinion
testimony only when it is “[r]elated to a subject that is sufficiently beyond
common experience that the opinion of an expert would assist the trier of fact.”
(See Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 124 [subject of
expert opinion must be beyond common experience of ordinary persons].)

                                           8
       2. Forfeiture
       Before deciding the issue on which we granted review, we address the
People‟s claim that defendant‟s failure to object to Dr. Perry‟s hearsay testimony
below resulted in forfeiture of his arguments. As the People observe, the failure to
object to the admission of expert testimony or hearsay at trial forfeits an appellate
claim that such evidence was improperly admitted. (Evid. Code, § 353, subd. (a);
People v. Eubanks (2011) 53 Cal.4th 110, 142 [failure to object to hearsay in
expert‟s testimony forfeits claim on appeal].)
       The People correctly point out that defendant did not object to Dr. Perry‟s
testimony, based on the records of defendant‟s treatment at Atascadero State
Hospital, that defendant was in treatment for his mental disorder for 90 days, as
required under section 2962, subdivisions (c) and (d)(1). Therefore, we agree with
the People that defendant forfeited his challenge to Dr. Perry‟s testimony on that
factor. As we explain, although defendant failed to object to Dr. Perry‟s testimony
as to his prior 90-day treatment requirement, he did not forfeit his claim that Dr.
Perry improperly testified about defendant‟s threats of force or violence in
committing his crime.
       Defendant did object, at least in part, to Dr. Perry‟s testimony about the
facts of his petty theft offense with a prior conviction to prove his offense involved
“force or violence.” The prosecutor withdrew the question unanswered, and
defendant did not ask for a ruling on his objection. Dr. Perry then stated that he
based his opinion that defendant‟s severe mental disorder was an aggravating
factor in his commission of the 2009 offense on two facts: “First, [defendant] had
a preexisting psychotic disorder at the time of the offense that happened in
November 2009 and the circumstances of that crime suggested to me that
[defendant]‟s symptoms were active. [¶] So [defendant] was observed placing
items at a drug store into his waistband and pockets and then walking out of the

                                          9
store without paying. When loss prevention officers then confronted him about
that, [defendant] threatened to assault and to kill the loss prevention agents. [¶]
He, also, tried to push a shopping cart into one of them. [Defendant] had only
about $27 worth of merchandise. So to threaten someone‟s life and attempt to
assault them over such minor items, to me suggest an irrational thought process.
[¶] And, according to the probation officer‟s report, [defendant] also made a
statement consistent with delusional ideation. He stated to the arresting officers
that he watches the backs of the employees at the drug store. This is consistent
with his history of delusions of being involved in public safety in some way.” Dr.
Perry then testified, again without objection, that he based his opinion that
defendant “had a history of aggressive and threatening behaviors during periods of
psychiatric instability” and was not in remission on “hospital progress notes that
document active symptoms.” Dr. Perry‟s testimony satisfied the trial court that
defendant used threats of force or violence in committing the underlying offense.
(§ 2962, subd. (e)(2)(Q).)
          The trial court ruled that defendant forfeited his claim that Dr. Perry‟s
testimony was based on inadmissible hearsay, and that the prosecutor presented no
substantive independent proof that defendant used force or violence in committing
the petty theft, because the testimony “about the commission of the crime came in
without objection.” The Court of Appeal agreed with the trial court regarding the
forfeiture claim but went on to decide the issue on the merits. The record shows
that both the trial court and the Court of Appeal erred in part on the forfeiture
ruling.
          A defendant “ordinarily cannot obtain appellate relief based upon grounds
that the trial court might have addressed had the defendant availed himself or
herself of the opportunity to bring them to that court‟s attention.” (People v.
Fuiava (2012) 53 Cal.4th 622, 655.) Generally, a timely objection is required for

                                            10
reversal of a judgment on the merits on an alleged erroneous admission of the
evidence. (Evid. Code, § 353, subd. (a).) In this case, defendant did object to the
prosecutor‟s intent to rely on Dr. Perry‟s testimony covering the facts of the
commitment offense contained in the probation report. Although defendant did
not press for a ruling on his objection because the prosecutor withdrew the
question, he later did object on hearsay and foundation grounds when the
prosecutor attempted to ask a similar question on redirect examination. The trial
court sustained that objection. Dr. Perry testified, however, without objection, that
the probation report showed that defendant‟s mental disorder was one of the
causes of, or an aggravating factor in, “the commission of the crime for which he
was sentenced to prison.” (See § 2962, subds. (b) & (d)(1).) The question Dr.
Perry answered on direct examination was phrased, “On which do you base your
opinion that Mr. Stevens‟ severe mental disorder was an aggravating factor in the
commission of the crime?” This question did not ask Dr. Perry to testify as to the
facts of the underlying crime, and the response lays a foundation only for Dr.
Perry‟s opinion testimony under Evidence Code section 801, subdivision (b).
Therefore, defendant properly objected when the prosecutor sought to introduce
the facts in the probation report into evidence through Dr. Perry. Defendant is
thus permitted here to raise the issue whether the trial court erred in relying on the
mental health professional‟s testimony to conclude that his underlying crime
involved the threat of force or violence.
       3. The Miller and Baker Rules
       As noted, the two cases at issue here that discuss the MDO Act present
different interpretations of the act‟s requirements for proof that a defendant has
met the act‟s criteria. The earlier of the two, Miller, supra, 25 Cal.App.4th at page
917, observed that even if a probation report constitutes inadmissible hearsay,
Evidence Code section 801, subdivision (b), allows a mental health expert to refer

                                            11
to it because the code allows an expert to rely on matters “made known to him at
or before the hearing, whether or not admissible.” The code does not require an
expert to have personal knowledge on the subject of the testimony. Miller pointed
out that “[i]n every felony proceeding in the State of California, a probation report
is required and must be read and considered by the sentencing judge. (Pen. Code,
§ 1203, subds. (b), (g).) The Legislature does not require trial court judges to read
and consider „unreliable‟ documents as a prerequisite to the imposition of
sentence. This report is prepared upon conviction, i.e., either by plea or trial.”
(Miller, supra, 25 Cal.App.4th at p. 918.) Miller concluded that although the
probation report is hearsay, an expert may rely upon that report at MDO
proceedings because it is reliable as a document prepared upon conviction. (Ibid.
[“[T]he trial court must make a finding that there is a factual basis for a guilty
plea. . . . [I]t is typical for the trial court to rely on the probation report to find a
factual basis for the plea.”].) Even though Miller acknowledged that prosecutors‟
cases would be stronger if they could provide a percipient witness to further
establish the underlying violent offense, the Miller court did not require
prosecutors to present one. (See id. at p. 919.)
       In contrast, Baker would not permit an expert to opine on the nature of the
commitment offense or to convey the content of hearsay documents in order to
establish that requirement. Baker stated the general rule that a professional‟s
“ „on-the-record recitation of sources relied on for an expert opinion does not
transform inadmissible matter into “independent proof” of any fact.‟ ” (Baker,
supra, 204 Cal.App.4th at p. 1246.) Accordingly, Baker did not allow the licensed
psychologist‟s expert testimony to be admitted as proof of the facts in the
probation report. (Baker, supra, 204 Cal.App.4th at p. 1245, fn. 9 [“Although an
expert opinion is required as to some criteria in order to determine whether the
prisoner is an MDO, expert opinion is not necessary — or admissible — with

                                            12
respect to the facts underlying the offense or whether the offense posed a risk of
harm to others . . . .”].) The court further explained that “[a]n expert‟s opinion is
admissible only with respect to a subject „that is sufficiently beyond common
experience that the opinion of an expert would assist the trier of fact.‟ (Evid.
Code, § 801, subd. (a).) Whether the [defendant‟s commitment offense of] arson
posed a substantial danger of physical harm to others is not a question [the expert]
was competent to answer. To the extent that this is a factual question, it is not one
requiring the opinion of an expert to assist the trier of fact. [(Ibid.)] To the extent
that [the expert‟s] opinion was based on a legal conclusion, it is not substantial
evidence. (Downer v. Bramet (1984) 152 Cal.App.3d 837, 841 [expert is not
authorized to testify to legal conclusions in the guise of expert opinion].)” (Baker,
supra, at pp. 1245-1246, fn. omitted.) Thus, Baker made it clear that although
expert opinion testimony is required to determine some of the criteria in the MDO
proceeding, it is not necessary, or even admissible, with respect to proving the
underlying facts or elements of the offense to show that a defendant‟s crime
qualified as an MDO Act commitment offense. (Baker, at p. 1245, fn. 9.)
       It is true that an MDO hearing contemplates expert opinion testimony on
other factors, including whether the defendant‟s severe mental disorder was one of
the causes of or an aggravating factor in the commission of the crime. (§ 2962,
subd. (b).) As to those factors, the expert may rely on hearsay documents that are
“of a type that reasonably may be relied upon by an expert in forming an opinion
upon the subject to which his testimony relates.” (Evid. Code, § 801, subd. (b).)
But proof of a qualifying conviction under the MDO Act is based on facts rather
than on defendant‟s psychological condition, and thus does not call for a mental
health expert‟s opinion testimony. We therefore disapprove People v. Miller,
supra, 25 Cal.App.4th 913, because we conclude it is inconsistent with the MDO



                                          13
Act and the rules of evidence regarding the proper scope of expert opinion
testimony.
       4. Legislative History
       The People argue that recent legislative history of section 2962 supports
Miller‟s approach to the admissibility of hearsay reports in order to prove
defendant‟s offense posed a substantial risk of harm to others because the
Legislature has amended the statute and progressively enlarged the role of the
mental health professional during the MDO hearing process. The People assert
that this history indicates the Legislature intended the force or violence provision
to include a mental health component. By contrast, defendant claims that the
amendments do not support the People‟s contention. He asserts that had the
Legislature intended to allow psychiatric experts to rely on a probation report or
other hearsay documents to form an opinion of whether a prisoner‟s offense posed
a substantial risk to others and qualified him for MDO commitment, it would have
said so. As we explain, it appears to us that defendant makes the better argument
because the recent amendments to the MDO Act do not address the admissibility
of evidence or the use of expert testimony.
       a. Legislative Amendments to the MDO Act
       The original MDO Act included the requirements that the prisoner‟s crime
involved force or violence, and that the prisoner was in treatment for the severe
mental disorder for 90 days or more within the year prior to the prisoner‟s parole
or release. (Former § 2960, subd. (b)(4), as amended by Stats. 1985, ch. 1419, § 1,
pp. 5011-5017.) In 1987, the Legislature added section 2981, which authorizes the
use of certified “records or copies of records” concerning the prisoner from any
jail, prison or hospital where the prisoner was confined to establish prima facie
evidence of the 90-day requirement. (§ 2981.) The purpose of this addition was
to “preclude the necessity for records custodians to appear in court to authenticate

                                         14
the records.” (Sen. Com. on Judiciary, Rep. on Sen. Bill No. 425 (1987-1988 Reg.
Sess.) as amended May 4, 1987, p. 3.)
       In 1995, a year after Miller was decided, the Legislature amended section
2962 to delete from subdivision (d)(1) the offense of force or violence provision,
and instead added specific crimes that would satisfy the force or violence
requirement (§ 2962, subd. (e)(2)(A)-(O)), as well as a blanket provision in section
2962, subdivision (e)(2)(P), to explain that this was not an exclusive list of
offenses that would satisfy the violent crimes requirement. (See Sen. Com. on
Criminal Procedure, Rep. on Sen. Bill No. 34 (1995-1996 Reg. Sess.) as amended
Apr. 5, 1995, pp. 4-5.) By creating new subdivisions for the force or violence
requirement of section 2962, the Legislature expanded the list of crimes for MDO
status. (Ibid.)
       The Legislature again amended section 2962 in 1999, this time in response
to our holding in People v. Anzalone (1999) 19 Cal.4th 1074. In Anzalone, we
held that the force or violence element required the “actual, rather than implied,
display of force or violence” for the triggering offense in section 2962, subdivision
(e)(2)(P). (Anzalone, at p. 1077.) In the same year that we decided Anzalone, the
Legislature overturned our holding in that case when it added subdivision
(e)(2)(Q) to include, as noted above, “[a] crime in which the perpetrator expressly
or impliedly threatened another with the use of force or violence likely to produce
substantial physical harm . . . .” (§ 2962, subd. (e)(2)(Q); see Sen. Com. on Public
Safety, Rep. on Sen. Bill No. 279 (1999-2000 Reg. Sess.) as amended Mar. 10,
1999, pp. 1-4.) By creating additional subdivisions in 1995 and 1999 for the force
or violence requirement of section 2962, the Legislature gave these crimes new
significance in the overall statutory scheme. Of note is the fact that these new
provisions do not require certification by the chief psychiatrist similar to the
criteria stated in section 2962, subdivision (d)(1). But there is no indication the

                                          15
Legislature sought to expand what an expert could rely on to formulate an opinion
as to a defendant‟s mental health status, or otherwise to minimize the importance
of the requirements under Evidence Code section 801.
       Additional amendments to the Sexually Violent Predator (SVP) Act (Welf.
& Inst. Code, § 6600 et seq.) also support defendant‟s claim that the trier of fact
may not rely on expert opinion testimony to establish facts underlying the
commitment offense. For example, in 1996, the Legislature amended Welfare and
Institutions Code section 6600 to permit the details of predicate sexual offenses to
be proven by documentary evidence. (Stats. 1996, ch. 462, § 4, p. 2818.)2 In
People v. Otto (2001) 26 Cal.4th 200, we held that the statute created an exception
to the rules of evidence to allow admission of multiple-level hearsay contained in
the specified documents. (Id. at pp. 206-209.) These examples show that the
Legislature knows how to adopt special rules of evidence to govern commitment
proceedings. It has not done so in MDO Act proceedings, except for Penal Code
section 2981 (allowing documentary evidence of 90-day treatment period).
Additionally, in SVP proceedings, the Legislature authorized proof of the details
of a commitment offense through admission of documentary evidence, not expert
testimony.
       b. Venue
       The People also argue that legislative amendments that required the MDO
judicial hearings to take place in the superior court of the county where a

2       Specifically, subdivision (a)(3) of section 6600 of the Welfare and
Institutions Code provides in relevant part: “The existence of any prior
convictions may be shown with documentary evidence. The details underlying the
commission of an offense that led to a prior conviction, including a predatory
relationship with the victim, may be shown by documentary evidence, including,
but not limited to, preliminary hearing transcripts, trial transcripts, probation and
sentencing reports, and evaluations by the State Department of State Hospitals.”



                                         16
defendant was incarcerated demonstrate the Legislature‟s intent to allow an expert
to testify to all of the MDO Act‟s criteria. We disagree. The fact that the
Legislature requires MDO judicial proceedings to take place “in the superior court
of the county in which [the prisoner] is incarcerated or is being treated” (§ 2966,
subd. (b)) does not add persuasive value to the People‟s argument. In some cases,
the facts of an underlying conviction may be proved by admissible documentary
evidence that does not require witness testimony, so it is likely that the Legislature
was more concerned about securing defendant‟s presence and public safety, rather
than unavailable witnesses, in requiring venue to be in the county where the
prisoner is incarcerated or treated.




                                         17
                                   CONCLUSION
       We conclude that in a commitment hearing under the MDO Act, the People
may not prove the facts underlying the commitment offense (that are necessary to
establish the qualifying offense) through a mental health expert‟s opinion
testimony. We note that the Legislature is free to create exceptions to the rules of
evidence as it has done in the SVP context. We therefore reverse the Court of
Appeal judgment, and remand the matter for proceedings consistent with our
conclusion.

                                                        CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Stevens
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 213 Cal.App.4th 1401
Rehearing Granted

__________________________________________________________________________________

Opinion No. S209643
Date Filed: December 10, 2015
__________________________________________________________________________________

Court: Superior
County: San Luis Obispo
Judge: Barry T. LaBarbera

__________________________________________________________________________________

Counsel:

Gerald J. Miller, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Paul M. Roadarmel, Jr., Steven D. Matthews and Scott A. Taryle, Deputy
Attorneys General, for Plaintiff and Respondent.




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Counsel who argued in Supreme Court (not intended for publication with opinion):

Gerald J. Miller
P.O. Box 432
Agoura Hills, CA 91376
(818) 584-5986

Scott A. Taryle
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2363




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