Filed 4/9/13 P. v. Johnson 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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. B239324
                                                                              (Super. Ct. No. F468515)
     Plaintiff and Respondent,                                                (San Luis Obispo County)

v.

LAMORRIS JOHNSON,

     Defendant and Appellant.



                   Lamorris Johnson appeals a judgment committing him to the California
Department of Mental Health (CDMH)1 for treatment as a mentally disordered offender
(MDO) (Pen. Code, § 2962),2 following his conviction of committing lewd acts on a
child under the age of 14 (§ 288, subd. (a)). The trial court found that Johnson received
90 days of treatment for his mental disorder because of treatment he received at a parole
outpatient clinic (POC). (§ 2962, subd. (c).) We conclude, among other things, that: 1)
POC medical services may be considered in deciding whether the prisoner received 90
days of treatment, but 2) the trial court erred by allowing the People's expert to testify



1
  As part of a reorganization, the California Department of Mental Health has been
renamed the Department of State Hospitals. Because the relevant statutes at the times
relevant herein use the former name, we will refer to the agency by its former name.
2
  All statutory references are to the Penal Code.
on direct examination about the content of an opinion from a nontestifying expert. We
reverse.
                                         FACTS
              Johnson filed a petition to challenge a Board of Parole Hearings
determination that he met the requirements for commitment as an MDO. (§ 2962.) He
waived a jury trial.
              At trial, Dr. Timothy Nastasi testified that Johnson suffers from
pedophilia, a severe mental disorder. His pedophilia was an aggravating factor in his
offense of committing lewd acts on a child. Johnson "represents a substantial danger of
physical harm to others because" of his disorder. He has a "history of sexual violence,"
which includes "five years of sexual acts with a child between the ages of three and
eight." Nastasi said, "[P]edophilia in the clinical sense never actually goes in remission.
One would have to gain the skills through psychosocial treatment to be considered in
remission . . . ." Johnson is not in remission. He did not complete "the sex offender
program."
              Nastasi said that Johnson received 90 days of treatment in the year prior to
his parole release date at a POC. In rendering his opinion, he relied on an MDO
evaluation report by Dr. Kathryn Anderson and statements Johnson made to her during
an interview. Anderson concluded that Johnson received 90 days of treatment at the
POC.
              Nastasi testified that "when [Anderson] asked [Johnson] about treatment
he received at the[POC], sex offender treatment, he indicated he had received frequent
treatment and that he had worked on triggers and things to stay away from . . . ."
Johnson also told her that he had "received treatment at the [POC] between October 5,
2010, and February 7, 2011."
              Johnson's counsel objected to Nastasi's testimony about the treatment
requirement. He claimed it was based on hearsay and inadequate foundation and that



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there was an insufficient showing of the reliability of Anderson's opinion based on
Johnson's statements to her. The trial court overruled the objections.
              Nastasi said he reviewed an evaluation by Dr. George Grasso who
concluded Johnson did not receive 90 days of treatment. He said, "I'm not sure [Grasso]
even considered [POC] as counting as treatment."
              Johnson testified that he told Anderson that he had "reported to the [POC]
on a consistent basis throughout [his] supervised release . . . ." She did not ask him
about the length of treatment and he did not tell her about the type of treatment he
received at the POC. He did not use the phrase "triggers and types of thing to stay
away" in the interview.
              The trial court found that Johnson met the requirements to be committed
as an MDO. "[T]his court believes treatment in the parole outpatient treatment should
count towards the 90 days." The court found Johnson's trial testimony was not credible.
It said, "[I]f I have to judge the credibility of the statements attributed to Mr. Johnson by
Dr. Anderson and other testimony given in court, I'm going to accept the statements
presented by Dr. Anderson in that report."
                                      DISCUSSION
                                   90 Days of Treatment
              Johnson claims the trial court erred by considering POC outpatient
services as "treatment" in determining the 90 day treatment requirement. We disagree.
              The People must prove "[t]he prisoner has been in treatment for the severe
mental disorder for 90 days or more within the year prior to the prisoner's parole or
release." (§ 2962, subd. (c).)
              Johnson contends that in a prior decision we precluded the inclusion of
POC outpatient services as "treatment" for the 90-day requirement. We disagree.
              In People v. Del Valle (2002) 100 Cal.App.4th 88, 93, we held that private
outpatient services could not be included within the 90-day treatment requirement. We
also said, "It is consistent with the statutory scheme that a prisoner must receive 90 days


                                             3
of inpatient treatment before he can qualify as an MDO." (Ibid., italics added.) This
language which Johnson relies on to support his argument is dicta. In Del Valle, we did
not reach the issue of whether POC outpatient services may be included as part of the
90-day treatment requirement. (Santisas v. Goodin (1998) 17 Cal.4th 599, 620
[language in appellate decisions is not authority for issues that were never raised or
decided].)
              Recently in People v. Achrem (2013) 213 Cal.App.4th 153, we held that
POC medical services fall within the type of treatment that may be considered in
deciding whether the prisoner received 90 days of treatment. Consequently, the trial
court did not err by considering the POC services.
                        Nastasi's Testimony about Anderson's Opinions
              Johnson contends it was error for the trial court to allow Nastasi to testify
on direct examination about Anderson's opinion in her report. We agree.
              In a prior case, we held, "An expert witness may not, on direct
examination, reveal the content of reports prepared or opinions expressed by
nontestifying experts." (People v. Campos (1995) 32 Cal.App.4th 304, 308.) "'"'"The
reason for this is obvious. The opportunity of cross-examining the other doctors as to
the basis for their opinion, etc., is denied the party as to whom the testimony is
adverse."'"'" (Ibid.)
              Here the trial court erred by not sustaining the objection to Nastasi's direct
testimony about Anderson's report. This was prejudicial error. Anderson did not
testify. The statements in Anderson's report were hearsay and they were "adverse" to
Johnson's interests and his position in this case. They involved a critical issue - the
treatment that Johnson received at the POC. Johnson was denied the opportunity to
cross-examine Anderson about the basis for her opinions. Had Johnson's objection been
sustained, the People would not have been able to sustain their burden of proof in their
case. Nastasi used Anderson's report as the basis for his testimony. He did not review
the POC medical records and he was consequently unable to base his opinion on those


                                             4
records. Johnson's right to a fundamentally fair trial was compromised when the court
permitted the prosecutor "to solicit the information" from Anderson's report during
Nastasi's direct examination. (People v. Campos, supra, 32 Cal.App.4th at p. 308.)
This allowed the People to use Anderson's unsworn hearsay as a substitute for calling
her as a witness at trial to prove their case.
               The judgment is reversed.
               NOT TO BE PUBLISHED.




                                             GILBERT, P.J.


We concur:



               YEGAN, J.



               PERREN, J.




                                                 5
                                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, Shawn
McGahey Webb, David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.




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