People v. Landreth CA2/6

Filed 9/19/16 P. v. Landreth CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B270790 (Super. Ct. No. 16PT-00040) Plaintiff and Respondent, (San Luis Obispo County)

v.

GARRET MATTHEW LANDRETH,

Defendant and Appellant.

Garret Matthew Landreth appeals the trial court’s order committing him for treatment as a mentally disordered offender (MDO). (Pen. Code,1 § 2960 et seq.) Appellant contends, and the People concede, that the evidence is insufficient to sustain the finding that his conviction of second degree robbery (§ 211) is a qualifying offense under the MDO law. We reverse and remand for further proceedings. FACTS AND PROCEDURAL HISTORY In 2006, in Los Angeles County Superior Court case no. GA060401, appellant pled guilty or no contest to second degree robbery and admitted an allegation of a prior serious felony conviction (§ 667, subd. (a)(1)). The trial court sentenced him to eight years in state prison. On August 8, 2012, in Fresno County Superior Court case no. F12100302, appellant was convicted of battery by a prisoner on a non-confined person

1 All statutory references are to the Penal Code.

(§ 4501.5) and was sentenced to a four-year prison term to be served consecutively to the eight-year term he was then serving. On September 30, 2015, the Board of Parole Hearings (BPH) determined that appellant met the MDO criteria and sustained the requirement of treatment as a condition of parole. In January 2016, appellant petitioned for a hearing and sought appointment of counsel. Appellant waived his right to a jury a trial. Dr. Dia Gunnarsson, a forensic psychologist at Atascadero State Hospital, testified as the prosecution’s expert. Dr. Gunnarsson interviewed appellant and reviewed his criminal and mental health histories. Appellant suffers from bipolar disorder with psychotic features, which qualifies as a severe mental disorder. He has been in treatment since he was 15 years old and had been hospitalized numerous times for suicidal ideation. Dr. Gunnarsson did not offer an opinion whether appellant’s commitment offense qualified him for MDO treatment. She answered in the affirmative when asked if she was “familiar with [appellant’s] criminal history [and] that he was convicted of and is on parole now for both robbery and battery on a non-prisoner[.]” The prosecutor’s further questioning, however, focused exclusively on the robbery conviction. Dr. Gunnarrson opined that appellant’s severe mental disorder was a cause or aggravating factor in his commission of the robbery, which “involved [appellant] handing a note to a bank teller[.]” The doctor based her opinion on admissions appellant made to a prior evaluator regarding his state of mind at the time of the offense. She also opined that (1) appellant’s disorder was not in remission; (2) he had received at least 90 days of treatment for the disorder in the year prior to his parole; and (3) he presented a substantial risk of physical harm to others by reason of his disorder. At the conclusion of the trial, appellant asserted that his robbery conviction did not qualify him for MDO treatment. He noted that the MDO law includes as an enumerated offense “robbery wherein it was charged and proved that the defendant personally used a deadly or dangerous weapon . . . in the commission of that robbery.”