P. v.
Carmona
Filed
1/29/13 P. v. Carmona 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
JOSE CARMONA,
Defendant and
Appellant.
2d Crim. No.
B237510
(Super. Ct.
No. F463639)
(San
Luis Obispo County)
Jose
Carmona appeals from an order committing him to the Department of Mental
Health (DMH) for treatment as a
disordered offender (MDO) after a court trial. (Pen. Code, § 2960 et seq.)
parole outpatient clinic (POC) did not satisfy the MDO requirement that he
receive 90 days treatment in the year preceding his June
11, 2011 parole or release date. (§ 2962,
subd. (c).) We affirm. (§ 2964, subd. (a); People v. Achrem (Jan. 29, 2013, B236100) __ Cal.App.4th __, __.)
Procedural History
Appellant
suffers from a severe mental disorder (schizophrenia) and was sentenced to 16
months state prison following his 2010 conviction for grand theft of a
person. Appellant was paroled in August
2010 and received treatment at a POC but returned to prison in March 2011 after
he broke car windows and claimed he was Lucifer.
Two
psychologists evaluated appellant and certified that he met the MDO
criteria. So did a California Department
of Corrections and Rehabilitation (CDCR) Senior Psychiatrist who issued a June 9, 2011 MDO certification.
On August 4, 2011, the Board of Parole
Hearings (BPH) determined that appellant met all the MDO criteria and certified
him for treatment at Atascadero State Hospital (ASH). Appellant challenged the BPH determination in
superior court and waived jury trial.
DMH Psychologist Brandon Yakush opined that appellant met
all but one MDO criteria: that "[t]he prisoner has been in treatment for
the severe mental disorder for 90 days or more within the year prior to the
prisoner’s parole or release." (§ 2962, subd. (c).) Doctor Yakush stated that appellant received
87 days treatment in prison (March 17, 2011 to June 11, 2011) and 203 days POC treatment (August 10, 2010 to March 11, 2011) but was not sure that POC treatment
counted. Doctor Yakush explained that
mental health professionals at ASH disagree on whether POC treatment satisfies
the 90-day treatment requirement.
CDCR
Psychiatrist Christopher Miller-Cole testified that POCs are a network of clinics
that provide mental health treatment to parolees and that there is a
"significant overlap" between treatment offered a prisoner and
treatment offered at POCs.
Parole Outpatient Treatment
Appellant
concedes that he received more than 90 days treatment but claims that POC
treatment does not count because it was not custodial treatment in a DMH
facility, i.e., a state hospital such as ASH.
Reading section 2962, subdivision (c) in isolation, one could argue that a "parolee" is not a
prisoner and that a prisoner can never receive out-patient treatment. The folly of this logic is the product of People
v. Del Valle (2002) 100 Cal.App.4th 88 and People v. Martin
(2005) 127 Cal.App.4th 970, which we disapproved in People v. Achrem, supra, __ Cal.App.4th at p
__. Statutory language should not be
given a literal meaning if it results in absurd consequences that the
legislature never intended. (Younger
v. Superior Court (1978) 21 Cal.3d 102, 113.)
Although POC treatment is
under the auspices of CDCR, section 2964, subdivision (a) provides that the
treatment satisfies the 90-day treatment requirement if the outpatient program was
"specified" by DMH. (See Cal.
Code Regs., tit. 15, § 2570, subd. (f).
POC treatment is non-custodial treatment but qualifies provided the
treatment plan was reviewed and approved by DMH prior to the prisoner's parole.
(§ 2964, subd. (a).)
That
is what happened here. The record on
appeal includes a MDO certificate signed by CDCR Senior Psychiatrist Cheryl
Piazis that was submitted to the BPH.
(See Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1064; §
2962, subd. (d)(1); 15 Cal. Code Regs.,
§§ 2570 & 2572, subd. (a) [describing MDO certification and hearing
procedure].) Doctor Piazis certified
that appellant was in treatment for 90 days or more in the year prior to his
scheduled parole or release date.
Appellant argues that the 90-day treatment requirement
was not satisfied because there is a conflict in the expert opinion
testimony. Not so. Doctor Yakush stated: "I don't have an opinion one way or
another on this. . . . [A]t this moment
in time, I believe it is a legal issue that I really myself see both sides of. I don't believe I can state a certain opinion
one way or the other." Doctor
Yakush admitted that it was not his function to opine about what the MDO Act
means.
title="">[2] Kudos to him.
An expert who has no opinion on a factual issue offers "zero
evidence." The evidence " '
"is wholly without value to the trier of fact in reaching a
decision." ' [Citation.]" (People
v. Killebrew (2002) 103 Cal.App.4th 644, 651.)
We take the MDO as we find it, (See e.g., Unzuetta v. Ocean View School
Dist. (1992) 6 Cal.App.4th 1689, 1699 [rejecting "dictionary school of
jurisprudence"].) As in any
sufficiency of the evidence appeal, we draw all reasonable inferences in favor
of the judgment. Two mental health
experts opined that the 90-day treatment criteria was satisfied. A third mental health expert, Doctor Yakush,
had no opinion. The trial court did not
err in finding that appellant was an MDO.
(See People v. Bowers (2006) 145 Cal.App.4th 870, 879 [single
mental health expert opinion constitutes substantial evidence].)
The
judgment (MDO commitment order) is affirmed.
NOT
TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT,
P.J.
PERREN,
J.
Barry T. LaBarbera, Judge
Superior Court County of San Luis Obispo
______________________________
Gerald Miller, under appointment by the Court
of Appeal, forDefendant 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.
name="_ftn1" title="">[1] All statutory references are to the Penal Code.
title="">[2] Doctor Yakush stated that MDO evaluators at
ASH have discussed "this issue on and off for as long as any of us have
been doing this work." "I
really wish we had more clear case law on [this] because I d[o]n't feel that
there was real guidance. [¶] . . . Nobody ha[s] ever laid out for me
[the] reasoning as to why POC was excluded. . . . [T]here was never a
black-and-white reason why?"
