People v. Tate

Opinion

YEGAN, J.

Kenny Wayne Tate appeals from a trial court finding that he is a mentally disordered offender (MDO) within the meaning of Penal Code section 2962.

1

Appellant concedes the order is supported by substantial evidence but argues that the trial court should have ordered his discharge pursuant to section 2968 because of an improvement in his mental condition. We affirm and hold that section 2968 may not be raised as an affirmative defense at a section 2966 proceeding.

In 1992 appellant pled guilty to second degree robbery and was sentenced to state prison for two years. His parole release date was March 20, 1993.

On November 10, 1992, Doctor Moss, a staff psychiatrist at Atascadero State Hospital, examined appellant and determined that he suffered from a severe mental disorder. Appellant was transferred to Atascadero State Hospital where Doctor Audrey Mertz diagnosed and treated him for a hypomanic, bipolar disorder.

[1681]

On January 27, 1993, the Board of Prison Terms (BPT) found that appellant met the MDO criteria and ordered him committed to Atascadero State Hospital for treatment. (§§ 2962, 2966, subd. (a).)

2

Appellant filed a petition for trial of the issue and waived his right to a jury. (§ 2966, subd. (b).) The matter was tried on May 20 and 21, 1993.

Doctor Hollingsworth testified that appellant met all of the MDO criteria as of January 27, 1993. Doctors Moss and Ratner concurred. The psychiatric evaluations, probation reports, and medical records showed that the severe mental disorder was an aggravating factor in the robbery.

Doctor Mertz, appellant’s treating physician, testified that appellant was not in remission on January 27, 1993, and presented a substantial danger of physical harm to others as of that date. Doctor Mertz stated, however, that she had changed her original diagnosis and believed that appellant’s manic symptoms were caused by a hyperthyroid condition. After the BPT certification hearing, appellant was prescribed thyroid medication and showed a marked improvement. Doctor Mertz opined that appellant no longer fit the MDO criteria because the manic symptoms were in remission.