P. v. Meredith CA2/6

Filed 4/22/13 P. v. Meredith CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B244503 (Super. Ct. No. F476520) Plaintiff and Respondent, (San Luis Obispo County)

v.

AARON MEREDITH,

Defendant and Appellant.

Aaron Meredith appeals from an order committing him to the State Department of State Hospitals (formerly Department of Mental Health) for treatment as a mentally disordered offender (MDO). (Pen. Code, § 2960 et seq.)1 Appellant claims that the evidence does not support the finding that he received 90 days of treatment within a year of his parole or release date (§ 2962, subd. (c)) and asserts that the MDO certification was not timely (§ 2962, subd. (d)(1)). We affirm. Procedural History Appellant suffers from a severe mental disorder, schizophrenia, paranoid type, manifested by delusional beliefs, paranoia, auditory hallucinations, and psychomotor agitation. In 2010 he was sentenced to state prison for carjacking. (§ 215, subd. (a).) Doctor Kevin Perry testified that appellant met all the MDO criteria, that the mental disorder was not in remission, and appellant posed a substantial danger to the community.

1 All statutory references are to the Penal Code. 1

90 Days Treatment Doctor Perry was asked whether appellant received the requisite 90 days of treatment before the Board of Parole Hearing. (§ 2962, subd. (c).) Over defense objection, Doctor Perry answered "Yes." Appellant argues a "Yes" answer is hearsay. However, the question did not ask for a hearsay response. (Evid. Code, § 1200, subd. (a); see e.g., People v. Collins (2010) 49 Cal.4th 175, 214 [questions calling for "yes" or "no" answer are not leading unless unduly suggestive under the circumstances].) Doctor Perry also stated that appellant was not following the treatment plan which precludes appellant from arguing that the 90-day treatment element was not established. (People v. Kirkland (1994) 24 Cal.App.4th 891, 908-909.) Citing dicta in People v. Baker (2012) 204 Cal.App.4th 1234 (Baker), appellant argues that a mental health expert cannot render an opinion in a MDO proceeding based on medical records alone. We rejected a similar argument in People v. Stevens (Feb. 27, 2013, B241356) __ Cal.App.4th __ [2013 DJDAR 2558] on the ground that medical records are reliable and commonly relied upon by mental health professionals in evaluating and treating patients.2 Experts may rely on hearsay in formulating their opinions because it is not offered for the truth of the facts stated but merely as the basis for the expert's opinion. (People v. Cooper (2007) 148 Cal.App.4th 731, 747.) Doctor Perry interviewed appellant, reviewed the nursing and hospital progress notes, reviewed appellant's medical records and legal history, and spoke to nurses and psychiatric technicians involved in appellant's care. Doctor Perry's testimony was corroborated by the MDO certification signed by a chief psychiatrist for the California Department of Corrections and Rehabilitation and two MDO evaluation reports that appellant received more than 90 days of treatment. Substantial evidence supports the finding that appellant received the requisite 90 days of treatment. (§ 2962, subd. (c).)