P. v. Small CA2/6

Filed 3/27/13 P. v. Small CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B242679 (Super. Ct. No. F470333) Plaintiff and Respondent, (San Luis Obispo County)

v.

FREDERIC SMALL,

Defendant and Appellant.

Frederic Small appeals a judgment committing him to the State Department of State Hospitals (SDSH) for treatment as a mentally disordered offender (MDO) (Pen. Code, § 2962) following his 1995 conviction of two counts of committing lewd acts upon a child under 14 years of age. (Pen. Code, § 288.)1 We conclude, among other things, that substantial evidence supports the finding that because of his severe mental disorder Small represents a substantial danger of physical harm to others. (§ 2962, subd. (f).) We affirm. FACTS On February 2, 2012, Small filed a petition to challenge a Board of Parole Hearing's (BPH) decision that he met the requirements for commitment as an MDO. (§ 2962.) The superior court appointed counsel for him and Small waived a jury trial. At trial, Allison Stanley, a forensic psychologist, testified that Small has a "psychotic disorder," which is a severe mental disorder. The symptoms include "grandiose

1 All statutory references are to the Penal Code.

delusions and bizarre behavior." His 1995 commitment offense involved lewd acts on a child under 14 years of age. (§ 288.) The 13-year-old child was waiting for a school bus. Small was convicted of rape in1983, and he committed an earlier lewd act on a child in 1967. He represented a substantial danger of physical harm to others. He has a history of violence, no remorse for his actions, and he violated parole on three occasions. Two of the parole violations involved being in the presence of minor children. He refuses to take his medications, and he has "negligible insight into his severe mental disorder." His disorder is not in remission. David Walsh, a forensic psychologist, testified that Small suffers from a "bipolar affective disorder." Small represents a substantial danger of physical harm to others and his disorder is not in remission. Dr. Brandi Matthews, an MDO expert, testified that Small suffers from a "bipolar disorder maniac, severe with psychotic features." Small experiences "hallucinations" and "has been observed talking to himself on occasion." He has "mood symptoms" and "hyposexuality." His disorder is not in remission. On November 16, 2011, Small was "delusional." He claimed he had designed "on-shore command centers for the Navy" and that he led a rescue mission in South America. He represents a substantial danger of physical harm to others. Small testified that after his 1995 conviction he received no psychiatric treatment during his years in prison. In 2008, he was on parole for 10 days before it was revoked because he got a GPS device wet. His next parole violation was for "being around children." Small claimed the children "weren't there when [he] walked" into a barber shop. His last parole violation involved the unplugging of his GPS device. He claimed this occurred when he was reaching for heart medication after he felt a "tick" in his heart. For the first three times he was placed on parole, there was no referral for mental health treatment. He denied committing any lewd acts on the 13-year-old girl. He said, "[T]hey were college girls waiting to go to UCI." He broke a window at the state facility, but it was an accident.