P. v. Hernandez CA26

Filed 7/17/13 P. v. Hernandez CA26 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B246371 (Super. Ct. No. F481947) Plaintiff and Respondent, (San Luis Obispo County) v. RODRIGO HERNANDEZ, Defendant and Appellant.

Rodrigo Hernandez appeals from an order committing him to the State Department of State Hospitals (formerly Department of Mental Health) for treatment as a mentally disordered offender (MDO). (Pen. Code, § 2962.)1 Appellant contends that the evidence does not support the finding that he received 90 days of treatment within the year prior to his parole or release. (§ 2962, subd. (c)). We affirm. Facts and Procedural History On August 27, 2011, appellant was convicted of assault with a deadly weapon on an officer and sentenced to state prison. (§ 245, subd. (a)(1)) A year later, the Board of Parole Hearings (BPH) determined that appellant was an MDO. Appellant filed

1 All statutory references are to the Penal Code unless otherwise stated. Under the MDO Act, six criteria must be met to commit a prisoner as an MDO. (§ 2962, subds. (a)- (d)(1).) One of those criteria is that the prisoner must have 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).) 1

a superior court petition challenging the MDO determination and waived jury trial. (§ 2966, subd. (b).) Doctor Kevin Perry testified that appellant suffered from a severe mental disorder, schizophrenia, paranoid type, manifested by persecutorial delusions, auditory hallucinations, and paranoid beliefs that the FBI controlled him and people were poisoning his food. Appellant had a long history of mental health problems dating back to 1984 when he was admitted to Metropolitan State Hospital. From 1986 through 1993, he was treated at Patton State Hospital. Doctor Perry opined that appellant met all the MDO criteria, that the mental disorder was not in remission, and that appellant posed a substantial danger to others as evidenced by appellant's violent history and threats to kill his psychiatrist and hospital staff. 90 Days Treatment Appellant contends that the trial court erred in accepting Doctor Perry's opinion testimony that appellant received 90 days of treatment. (§ 2962, subd. (c).) It is settled that a mental health expert may render an opinion based on reliable hearsay of the type reasonably relied upon by mental health professionals. (People v. Miller (1994) 25 Cal.App.4th 913, 917-918 [probation report]; People v. Cooper (2007) 148 Cal.App.4th 731, 746-747 [videotaped statements].) "The hearsay relied upon by an expert in forming his or her opinion is ‘examined to assess the weight of the expert's opinion,’ not the validity of [it's] contents. [Citation.]" (Id., at p. 747.) Appellant argues that the 90-day-treatment determination is purely a factual question and does not require expert testimony. Doctor Perry's opinion testimony was based in part on appellant's admission in a face-to-face interview. Appellant stated that he received antipsychotic and antidepressant medication at Los Angeles County Jail for more than 90 days before he was transferred to state prison. Appellant asserts that his admission is not credible because he suffers from a mental disorder. We reject the