People v. Sutton CA2/6

Filed 5/26/22 P. v. Sutton CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B314548 (Super. Ct. No. 21PT-00276) Plaintiff and Respondent, (San Luis Obispo County)

v.

SEAN SUTTON,

Defendant and Appellant.

Sean Sutton appeals an order determining him to be a mentally disordered offender (MDO) and committing him to the State Department of State Hospitals for involuntary treatment. (Pen. Code, § 2962 et seq.)1 We conclude that sufficient evidence supports the jury’s determination that during commission of the underlying offense, Sutton impliedly threatened to use force or violence likely to cause substantial physical harm. We affirm. (§ 2962, subd. (e)(2)(Q).)

1 All statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL HISTORY In 2016, Sutton was convicted of one count of attempted robbery and, in 2017, sentenced to nine years’ imprisonment as a recidivist. (§§ 664, 213, subd. (b).) The criminal offense involved Sutton’s three unsuccessful attempts to take a purse from Keiko Murphy, then 86 years old. Murphy pushed Sutton away during the first attempt, and a bystander shouted that Sutton should leave Murphy alone during his second and third attempts. Sutton yelled incoherently and then walked away. When police officers arrived, Murphy was frightened and crying; she suffered from cognitive issues and was unable to communicate. On April 2, 2021, the Board of Parole Hearings (Board) determined that Sutton was an MDO pursuant to the criteria of section 2962. As a condition of parole, the Board required him to accept treatment from the State Department of State Hospitals. Sutton then filed a petition pursuant to section 2966, subdivision (b) to contest this decision. At a jury trial, the court received documents, including the abstract of judgment, probation report, and medical progress notes, into evidence. The jury also heard testimony from Doctor Dia Gunnarsson and Sutton. The parties stipulated that Sutton received 90 days or more of treatment during the year prior to his parole date. (§ 2962, subd. (c).) Expert Witness Testimony Gunnarsson, a forensic psychologist at Atascadero State Hospital, testified that she interviewed Sutton regarding the MDO criteria, reviewed his hospital treatment and criminal records, and consulted his treating psychiatrist, psychologist, and social worker. Gunnarsson opined that Sutton suffers from schizophrenia, a severe mental disorder, characterized by his