P. v. Sorenson

















Filed 4/25/13 P. v. Sorenson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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, Plaintiff and Respondent, v. RONALD SORENSON, Defendant and Appellant.

2d Crim. No. B242938 (Super. Ct. No. F472797) (San Luis Obispo County)

Ronald Sorenson appeals
from a judgment declaring him to be a mentally
disordered offender (MDO) and committing him to the Department of Mental
Health for treatment. (Pen. Code, §
2962.)href="#_ftn1" name="_ftnref1" title="">[1] Appellant contends that no admissible
evidence was offered to support the trial court's findings that appellant's
commitment offense involved the use of force or violence, and that he received
the requisite 90 days of treatment within the year prior to his hearing before
the Board of Parole Hearings (BPH). We
affirm.

FACTS AND PROCEDURAL HISTORY

In 2010, appellant was
convicted of assault with a deadly weapon
(§ 245, subd. (a)(1)) and was sentenced to state prison. After the BPH determined that appellant was
an MDO subject to involuntary treatment as a condition of his parole, appellant
filed a petition for hearing and waived his href="http://www.mcmillanlaw.com/">right to a jury trial.

Dr. Phylissa Kwarnter, a
clinical psychologist at Atascadero State Hospital (ASH), testified at the
hearing. Dr. Kwartner interviewed
appellant and spoke with his treatment team.
The doctor also reviewed appellant's medical records, his prior MDO
evaluations, and his probation report regarding the commitment offense. Based on this information, Dr. Kwartner
opined that appellant met the criteria for MDO treatment.

Appellant suffers from href="http://www.sandiegohealthdirectory.com/">paranoid schizophrenia,
which qualifies as a serious mental disorder under the MDO law. Appellant began requiring treatment in 1969,
when he was 18 years old. He has been
hospitalized in state facilities on 23 separate occasions. His symptoms include paranoid delusions,
conspiracy theories, disorganized thoughts, rambling and tangential speech,
catatonia, agitation, and poor impulse control.
He has been found incompetent to stand trial on six separate
occasions.

Based on her review of
the probation report regarding appellant's assault with a deadly weapon
conviction, Dr. Kwartner concluded that appellant's mental illness was at least
an aggravating factor in his commission of the offense. Appellant started a fire at a bus station,
then threw burning debris at an employee and peace officers. The debris struck the employee, burning his
left hand and singeing off his eyebrows.
Appellant demonstrated his paranoia by suggesting that he threw the
debris to protect himself.

Dr. Kwartner opined that
appellant's mental illness was not in remission as of the date of the BPH
hearing. Appellant admitted he was
exhibiting signs of his illness several months after the hearing. The day prior to the hearing, a psychiatrist
noted that appellant was guarded and irritable.
Since the hearing he has been aggressive, irritable, and agitated and
has been removed from two group therapy sessions. The doctor also opined that appellant's
mental illness could not be kept in remission without treatment because he
refuses to take his prescribed medications or follow his treatment plan.

Dr. Kwartner opined that
appellant had received at least 90 days of treatment during the year prior to
his BPH hearings. She reached this
conclusion based on records indicating he had received 173 days of treatment
during that period. The doctor further
opined that appellant continued to represent a substantial danger of physical
harm by reason of his mental disorder.
Appellant had been hospitalized five times after committing violent
offenses, which included a 1990 conviction for assault with a deadly weapon on
a peace officer, a 2005 conviction for elder abuse, and a 2010 conviction for
battery on a peace officer. Appellant
was convicted of elder abuse after hitting and kicking his mother while she was
lying on the ground. Appellant was still
exhibiting the symptoms that were present when the commitment offense was
perpetrated and refused to take his medications, and displayed a tendency to
engage in violent behavior when in the community.

Appellant testified in
his own behalf. He claimed he did not
know what schizophrenia was and denied ever speaking with Dr. Kwartner. Appellant denied starting the fire that led
to his commitment offense and claimed he had accidentally let go of the burning
debris after being sprayed with something.
He also denied hitting his mother or ever being charged with doing so.

Appellant did not
believe that any of his violent acts had anything to do with a mental
disorder. If he did have a mental
disorder, "it is rather sporadic" and "has nothing to do . . .
with aggressive things." He also
claimed he did not have any medication to take because "[m]edication is
something you come to an agreement with your dispensing or diagnosing or
prescribing medical personnel" and he had yet to come to such an
agreement.

At the conclusion of the
trial, the court found that appellant met the MDO criteria and accordingly
denied his petition and ordered him committed for treatment.

DISCUSSION

Appellant contends the
order committing him for MDO treatment must be reversed because no admissible
evidence was offered to prove two of the statutory criteria for such a
commitment, i.e., that his commitment offense involved the use of force or
violence and that he had received at least 90 days of treatment during the year
prior to the BPH hearing. (§ 2962, subds.
(c) & (e)(2)(P).) He claims that Dr.
Kwartner's testimony to that effect, which was based on appellant's probation
report, was inadmissible hearsay and not the proper subject of expert
testimony. In so arguing, he urges us to
disapprove our contrary conclusion in People
v. Miller (1994) 25 Cal.App.4th 913 (Miller).

After the briefs were
filed in this case, we reaffirmed Miller's
well-established rule that "[a] qualified mental health professional may
rely on a probation report to render an opinion whether a defendant is an
MDO." (People v. Stevens (2013) 213 Cal.App.4th 1401, 1403; see also >People v. Valdez (2001) 89 Cal.App.4th
1013, 1017; People v. Campos (1995)
32 Cal.App.4th 304, 310.) We also made
clear that each of the MDO criteria—including the two at issue here—are the
proper subject of expert medical opinion testimony. (Stevens,
at pp. 1403, 1407.) In doing so, we
disagreed with contrary dicta recently expressed by our colleagues in >People v. Baker (2012) 204 Cal.App.4th
1234, 1246. (Stevens, at pp. 1406-1407.)href="#_ftn2" name="_ftnref2" title="">[2] "We explained in Miller that a doctor can rely on reliable hearsay contained in a
probation report in forming an expert opinion as to 'force or violence,' or a
threat thereof. If the opinion is too
speculative, we are confident that the trial court will not allow such opinion. We have explicated Miller and have shown, legally and logically, why there is a
'mental health' component to each of the MDO factors. In our view, the MDO procedures that we
adopted in Miller have served the
prisoners and the People well for almost 20 years." (Stevens,
at p. 1408.) Appellant offers
nothing to convince us otherwise.
Accordingly, his claim of insufficient evidence fails.

The judgment (order of
commitment) is affirmed.

NOT TO BE PUBLISHED.









PERREN,
J.





We concur:







GILBERT, P. J.







YEGAN, J.





Teresa
Estrada-Mullaney, Judge



Superior
Court County
of San Luis Obispo



______________________________





Gerald J. Miller, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Eric J. Kohm, Deputy Attorney General, for Plaintiff and
Respondent.