P. v. Sepulveda CA2/6

Filed 5/16/13 P. v. Sepulveda CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B244674 (Super. Ct. No. F478634) Plaintiff and Respondent, (San Luis Obispo County)

v.

ZOLIO SEPULVEDA,

Defendant and Appellant.

Zolio Sepulveda appeals the judgment declaring him to be a mentally disordered offender (MDO) and committing him to the Department of Mental Health (now State Department of State Hospitals) for treatment. (Pen. Code, § 2962 et seq.)1 Appellant contends that no evidence was offered to support the trial court's findings that appellant's commitment offense of second degree burglary (§ 459) involved the use of force or violence. The People concede the point. Accordingly, we reverse and remand. FACTS AND PROCEDURAL HISTORY Appellant was convicted of second degree burglary and was sentenced to four years in state prison. After being paroled on November 29, 2008, appellant committed numerous parole violations and was returned to prison.

1 All further statutory references are to the Penal Code.

Prior to appellant's release, the Board of Parole Hearings (BPH) determined that he met the criteria for MDO treatment. Appellant timely filed a petition challenging that determination and waived his right to a jury. Dr. Phylissa Kwartner, a clinical psychologist at Atascadero State Hospital (ASH), testified at the hearing on behalf of the prosecution. Dr. Kwartner interviewed appellant2 and spoke with his treatment team. She also reviewed appellant's medical and legal records and prior MDO evaluations. Based on this information, Dr. Kwartner opined that appellant met the criteria for MDO treatment. Appellant suffers from schizoaffective disorder, which qualifies as a serious mental disorder under the MDO law. He has been in treatment since at least the 1980's and has a family history of mental illness. His symptoms include paranoid delusions, auditory hallucinations, tangential speech, dysphoria, anxiety, and irritability. Dr. Kwartner concluded that appellant had been convicted of a crime of force or violence. She based her conclusion on the contents of a document prepared by the Department of Corrections and Rehabilitation with regard to appellant's most recent parole violation. The document reflected that on August 13, 2011, appellant pulled out a knife during a confrontation with two security guards at a transit station in San Diego. Appellant was arrested and charged with carrying a concealed dirk or dagger, in violation of former section 12020, subdivision (a)(4). Since appellant was on parole for burglary at the time of the incident, the charge was referred to the BPH as a parole violation. Dr. Kwartner also concluded that appellant's mental illness was a cause or aggravating factor in his commission of the offense. A parole report from the week after the offense indicated that appellant was experiencing psychiatric issues at the time. Appellant offered paranoid explanations for the offense, believing that the government had sent the security guards to hurt him. He had also been placed in a mental health crisis bed as a result of hallucinations within a month of the offense and experienced suicidal ideation throughout the period.