P. v. Johnson CA2/6

Filed 4/9/13 P. v. Johnson CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B239324 (Super. Ct. No. F468515) Plaintiff and Respondent, (San Luis Obispo County)

v.

LAMORRIS JOHNSON,

Defendant and Appellant.

Lamorris Johnson appeals a judgment committing him to the California Department of Mental Health (CDMH)1 for treatment as a mentally disordered offender (MDO) (Pen. Code, § 2962),2 following his conviction of committing lewd acts on a child under the age of 14 (§ 288, subd. (a)). The trial court found that Johnson received 90 days of treatment for his mental disorder because of treatment he received at a parole outpatient clinic (POC). (§ 2962, subd. (c).) We conclude, among other things, that: 1) POC medical services may be considered in deciding whether the prisoner received 90 days of treatment, but 2) the trial court erred by allowing the People's expert to testify

1 As part of a reorganization, the California Department of Mental Health has been renamed the Department of State Hospitals. Because the relevant statutes at the times relevant herein use the former name, we will refer to the agency by its former name. 2 All statutory references are to the Penal Code.

on direct examination about the content of an opinion from a nontestifying expert. We reverse. FACTS Johnson filed a petition to challenge a Board of Parole Hearings determination that he met the requirements for commitment as an MDO. (§ 2962.) He waived a jury trial. At trial, Dr. Timothy Nastasi testified that Johnson suffers from pedophilia, a severe mental disorder. His pedophilia was an aggravating factor in his offense of committing lewd acts on a child. Johnson "represents a substantial danger of physical harm to others because" of his disorder. He has a "history of sexual violence," which includes "five years of sexual acts with a child between the ages of three and eight." Nastasi said, "[P]edophilia in the clinical sense never actually goes in remission. One would have to gain the skills through psychosocial treatment to be considered in remission . . . ." Johnson is not in remission. He did not complete "the sex offender program." Nastasi said that Johnson received 90 days of treatment in the year prior to his parole release date at a POC. In rendering his opinion, he relied on an MDO evaluation report by Dr. Kathryn Anderson and statements Johnson made to her during an interview. Anderson concluded that Johnson received 90 days of treatment at the POC. Nastasi testified that "when [Anderson] asked [Johnson] about treatment he received at the[POC], sex offender treatment, he indicated he had received frequent treatment and that he had worked on triggers and things to stay away from . . . ." Johnson also told her that he had "received treatment at the [POC] between October 5, 2010, and February 7, 2011." Johnson's counsel objected to Nastasi's testimony about the treatment requirement. He claimed it was based on hearsay and inadequate foundation and that