Filed 3/28/23 P. v. Grinder CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD EUGENE GRINDER,

Defendant and Appellant.

F084612

(Super. Ct. No. CF01671189)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Michael G. 

Idiart, Judge.

Conness A. Thompson, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill, and 

Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P. J., Peña, J. and Smith, J.
2.

Defendant Richard Eugene Grinder appeals from an order extending his 

commitment as a mentally disordered offender (MDO) pursuant to Penal Code 

sections 2970 and 2972.

1

 Defendant specifically argues substantial evidence did not 

support the trial court’s conclusion the three criteria needed to extend his commitment 

were proven beyond a reasonable doubt. We affirm the trial court’s order recommitting 

defendant.

PROCEDURAL SUMMARY

Pursuant to a plea agreement, defendant pleaded no contest to committing 

five counts of lewd and lascivious acts upon a child who was 14 or 15 years old (§ 288, 

subd. (c)(1)), and one count of oral copulation with a victim who was under 16 years of 

age (§ 288a, subd. (b)(2), renumbered § 287, subd. (b)(2)). Defendant was subsequently 

sentenced to a term of six years and four months in state prison, consistent with the plea 

agreement.

Defendant was initially certified as an MDO in 2005 (§ 2962, subd. (d)). 

Defendant’s most recent petition for recommitment pursuant to sections 2970 and 2972

was filed in January of 2022.2 At the beginning of his trial on June 23, 2022,3 defendant 

waived the right to a jury trial. Following the presentation of evidence, the trial court 

found the People established beyond a reasonable doubt the statutorily required criteria 

necessary to justify defendant’s recommitment. Thereafter, the court signed an order 

extending defendant’s commitment to the State Department of State Hospitals at 

Coalinga (CSH) for an additional year, ending May 31, 2023. 

1 All further statutory references are to the Penal Code, unless otherwise specified.

2 We have been provided a partial record of previous petitions seeking 

recommitment. We choose to focus only on the most current petition at issue here.

3 Defendant agreed to a continuance beyond the expiration date of May 31, 2022, 

for his then current commitment.
3.

FACTUAL SUMMARY

The People’s Case

Dr. Joe Debruin, a clinical psychologist employed by CSH, was responsible for 

completing MDO evaluations under section 2972, and providing testimony on those 

evaluations when necessary. After relating his experience and credentials, Debruin stated 

he had completed an evaluation of defendant in September 2021.4 Debruin explained 

that before completing these evaluations, he interviews the patient and reviews reports 

prepared by various individuals involved in that patient’s care and treatment. When 

conducting the interview and reviewing the various reports, Debruin stated he looks for 

information that will help him reach an opinion he can provide to the courts on whether 

the patient meets the three criteria laid out in section 2972. Debruin explained the criteria 

consider whether the patient has a severe mental disorder, whether that disorder is in 

remission, and whether the patient is still considered dangerous because of their severe 

mental disorder.

On the first criterion, Debruin testified defendant had been diagnosed with 

two severe mental disorders: “major depressi[ve disorder], recurrent, with psychotic 

features,” and pedophilic disorder, which was of a “non-exclusive” type. With respect to 

the major depressive disorder diagnosis, Debruin stated defendant had not been 

participating in group treatment but was compliant with his medications. The pedophilic 

disorder diagnosis was based on defendant’s history of prior offenses. In defendant’s 

case, this involved the conviction of lewd and lascivious acts with a child under the age 

of 14, and oral copulation involving a child under the age of 16.

When Debruin asked defendant about these prior acts, defendant told him he had 

no interest in participating in sex-offender treatment. Defendant then denied the offenses 

4 The evaluation is attached to the petition seeking an order for defendant’s 

recommitment to CSH.
4.

occurred and commented the children were “ ‘sexualized’ ” and tried to draw him in to 

engage in sexual acts. Debruin found these comments by defendant to show he was still 

struggling with the thinking process that underlies the sexual attraction to minors. 

Debruin then explained that it is generally accepted in the field that there is no cure for 

this disorder, and that it can only be managed. Management would involve participation 

in psychosocial treatment, which defendant told Debruin he did not want to do. As a 

result, while defendant’s major depressive disorder was in remission, Debruin believed

his pedophilic disorder was not in remission because it was not being managed.

Debruin further explained his conclusion defendant still posed a danger to society 

because he continued to refuse to do what was necessary to manage his pedophilic 

disorder. Specifically, defendant had not completed a relapse prevention plan that would 

help him understand how to manage his behaviors and access support once he left the 

facility. Debruin acknowledged that while defendant was doing “a lot of things” to get 

released, he was not participating in the sex-offender treatment needed to reach the next 

step. In fact, Debruin later commented that defendant could be in a much better place in 

12 months’ time if he started participating in such treatment. For these reasons, Debruin 

concluded defendant met all three criteria specified in section 2972, justifying a 

recommitment to CSH for another year.

On cross-examination Debruin was asked if the diagnosis of pedophilic disorder 

was correct in that it usually refers to acts committed with children under the age of 13. 

Defense counsel instead identified ephebophilia disorder, which involves acts committed 

with children between the ages of 13–18. Debruin responded that treatment for this 

condition would not differ significantly from what is already recommended for 

defendant. Debruin also noted that despite the age range of the victims, defendant would 

still meet the criteria for having a severe mental disorder.
5.

The Defense Case

The defense presented testimony from their own expert, Dr. Harold Seymour. 

Seymour was also a psychologist specifically trained to do assessments, who was retired 

from his job as a community college instructor at the time of the hearing. Seymour 

noted, however, that he continued to conduct assessments from time to time. While 

Seymour believed defendant suffered from a well-documented case of major depressive 

disorder, he did not believe that diagnosis was inclusive of psychotic features, and opined

that defendant did not meet the criteria for pedophilic disorder. Seymour explained that 

to be diagnosed with this particular disorder, the victims involved had to be prepubescent, 

typically younger than 13 years. Seymour also shared his belief that defendant was less 

of a risk for reoffending due to his current age of 69, and medical issues impacting his 

mobility.

Seymour interviewed defendant, who told him he was suffering from substance 

abuse at the time of the offenses. Defendant also denied having a sexual attraction to 

adolescent boys. However, based on his interview with defendant, and his review of the 

relevant records provided to him, Seymour did not believe defendant’s major depressive 

disorder was in remission. Seymour also questioned whether defendant could be 

diagnosed with ephebophilic disorder because the acts he actually pled to did not span a 

period of at least six months.

During cross-examination, Seymour acknowledged sex-offender treatment for 

defendant would still be warranted regardless of what the actual diagnosis (pedophilic 

versus ephebophilic) was for defendant. Seymour also stated that defendant’s issues 

related to the sex offenses intensify his depression, meaning he would continue to need 

services for both.
6.

DISCUSSION

Defendant contends substantial evidence does not support the conclusion he 

suffers from a severe mental disorder, and as a result, the additional questions about 

remission and the potential dangers he poses to the public are moot.

I. The Applicable Standard of Review for Recommitment Petitions

“ ‘Enacted in 1985, the MDO Act requires that an offender who has been 

convicted of a specified felony related to a severe mental disorder and who continues to 

pose a danger to society receive appropriate treatment until the disorder can be kept in 

remission.’ [Citation.] The MDO Act provides for treatment at three stages of 

commitment: as a condition of parole (§ 2962), in conjunction with the extension of 

parole (§ 2966, subd. (c)), and following release from parole (§§ 2970, 2972).” (People 

v. Foster (2019) 7 Cal.5th 1202, 1207.)

“Sections 2970 and 2972 govern the third and final phase of MDO commitment, 

which begins once the offender’s parole term has expired. Section 2970 permits a district 

attorney, on the recommendation of medical professionals, to petition to recommit an 

offender as an MDO for an additional one-year term. An offender will be recommitted if 

‘the court or jury finds [1] that the patient has a severe mental disorder, [2] that the 

patient’s severe mental disorder is not in remission or cannot be kept in remission without 

treatment, and [3] that by reason of his or her severe mental disorder, the patient 

represents a substantial danger of physical harm to others.’ (§ 2972, subd. (c).)” (People 

v. Foster, supra, 7 Cal.5th at pp. 1207–1208.) At a recommitment hearing, the issue is 

whether the defendant’s “current condition justifie[s] extension of his commitment.” 

(People v. Cobb (2010) 48 Cal.4th 243, 252.)

Review for sufficiency of the evidence in the MDO recommitment context uses 

the same standard applied when reviewing criminal convictions—the substantial 

evidence test. (People v. Labelle (2010) 190 Cal.App.4th 149, 151.) “In considering the 

sufficiency of the evidence to support MDO findings, an appellate court must determine 
7.

whether, on the whole record, a rational trier of fact could have found that [a] defendant 

is an MDO beyond a reasonable doubt, considering all the evidence in the light which is 

most favorable to the People, and drawing all inferences the trier could reasonably have 

made to support the finding.” (People v. Clark (2000) 82 Cal.App.4th 1072, 1082.)

A. A Severe Mental Disorder

Defendant specifically challenges the evidence supporting the finding he suffers 

from a severe mental disorder. Defendant essentially believes he was misdiagnosed 

because the particular disorder he was diagnosed with has been redefined in newer 

versions of the Diagnostic and Statistical Manual of Mental Disorders (DSM).

For purposes of the legislative scheme governing the recommitment of those 

designated as MDOs, a severe mental disorder is defined as: 

“ ... an illness, disease, or condition that substantially impairs the person’s 

thought, perception of reality, emotional process, or judgment; or that 

grossly impairs behavior; or that demonstrates evidence of an acute brain 

syndrome for which prompt remission, in the absence of treatment, is 

unlikely. The term ‘severe mental health disorder,’ as used in this section, 

does not include a personality or adjustment disorder, epilepsy, intellectual 

disability or other developmental disabilities, or addiction to or abuse of 

intoxicating substances.” (§ 2962, subd. (a)(2).)

No specific list of mental disorders is provided in this statutory language. This is 

possibly a recognition of the fact “[m]ental impairments do not always lend themselves to 

a clearly defined diagnosis and may be subject to a general appraisal of symptoms rather 

than a recognized label.” (5 Cal. Crim. Practice: Motions, Jury Instructions & 

Sentencing (4th ed. 2022) § 59:8.)

While addressing a different statutory scheme, courts have recognized the 

complexity of defining mental disorders for purposes of a civil commitment. For 

instance, our Supreme Court in Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1156, 

stated civil commitments are allowed “as long as the triggering condition consists of ‘a 

volitional impairment rendering [the person] dangerous beyond their control.’ ” (Ibid., 
8.

citing Kansas v. Hendricks (1997) 521 U.S. 346, 358.) The Hubbart court made clear 

that due process does not dictate the precise manner in which this “volitional 

impairment” is statutorily described and does not require the legislature to adopt specific 

language when drafting civil commitment statutes. (Hubbart, at p. 1156.)

In this case, both experts testified defendant suffered from a disorder that would 

require further treatment before he could be considered to be in remission. Both 

witnesses also showed some concern for the fact defendant minimized his responsibility 

for committing the offenses, saying either he placed blame on his teenage victims or was 

not attracted to adolescent boys. Defendant’s own expert testified defendant’s thought 

processes related to the sex offenses intensified his depression.

Again, section 2962 defines a severe mental health disorder as “an illness, disease, 

or condition that substantially impairs the person’s thought, perception of reality, 

emotional process, or judgment; or that grossly impairs behavior.” We believe the 

evidence presented during the recommitment hearing provides substantial evidence that 

the condition defendant was suffering from falls within this definition as provided by the 

Legislature in section 2962.

We must address one argument defendant relies upon to challenge the strength of 

the evidence on the issue of his specific mental disorder. The argument concerns 

Debruin’s review of the probation report created at the time he entered his plea of no 

contest. Because Debruin considered the information provided in that report on the 

charges that were dismissed, defendant contends Debruin’s conclusions either lack a 

proper foundation or are somehow flawed.

When reaching an opinion, an expert may rely on information, whether or not 

admissible, “that is of a type that reasonably may be relied upon by an expert in forming 

an opinion upon the subject to which his testimony relates ....” (Evid. Code, § 801, 

subd. (b).) “ ‘A qualified expert is entitled to render an opinion on the criteria necessary 

for an MDO commitment, and may base that opinion on information that is itself
9.

inadmissible hearsay if the information is reliable and of the type reasonably relied upon 

by experts on the subject.’ ” (People v. Nelson (2012) 209 Cal.App.4th 698, 707.) 

Information contained within a probation report, though technically hearsay, is 

considered reliable information upon which an expert may rely when forming an opinion. 

(People v. Martin (2005) 127 Cal.App.4th 970, 976, disapproved on another ground in 

People v. Achrem (2013) 213 Cal.App.4th 153; People v. Sanchez (2016) 63 Cal.4th 665, 

681 [“Neither the hearsay doctrine nor the confrontation clause is implicated when an 

out-of-court statement is not received to prove the truth of a fact it asserts.”].)

Substantial evidence supports the trial court’s finding defendant was still suffering 

from a severe mental disorder.

B. Remission

“The term ‘remission’ means a finding that the overt signs and symptoms of the 

severe mental health disorder are controlled either by psychotropic medication or 

psychosocial support. A person ‘cannot be kept in remission without treatment’ if during 

the year prior to the question being before ... a trial court, the person has been in 

remission and has been physically violent, except in self-defense, or ... has not 

voluntarily followed the treatment plan. In determining if a person has voluntarily 

followed the treatment plan, the standard is whether the person has acted as a reasonable 

person would in following the treatment plan.” (§ 2962, subd. (a)(3).)

Debruin testified that while he believed defendant’s depression was in remission, 

his pedophilic disorder was not in remission. In contrast, defense expert Seymour 

testified that he did not believe defendant’s depression was in remission and that his 

issues related to the sex offenses intensified his depression. This evidence supports the 

conclusion defendant’s severe mental disorder is not in remission.

C. Substantial Danger of Harm to Others

While “ ‘ “substantial danger of physical harm” does not require proof of a recent 

overt act’ ” for purposes of recommitment as an MDO (In re Qawi (2004) 32 Cal.4th 1, 
10.

24, quoting § 2962, subd. (f)), that does not negate the statutory requirement of proof 

beyond a reasonable doubt that the person currently poses a substantial danger of 

physical harm to others, before recommitment as an MDO is permitted. (See § 2972, 

subds. (a)(2), (c), (e).)

A single opinion by a psychiatric expert that a person is currently dangerous due to 

a severe mental disorder can constitute substantial evidence to support the extension of an 

MDO commitment. (See People v. Bowers (2006) 145 Cal.App.4th 870, 879; People v. 

Zapisek (2007) 147 Cal.App.4th 1151, 1165.) An expert’s testimony in civil commitment 

cases on a person’s dangerousness or likely dangerousness may be the only evidence 

available on the issue. (People v. Ward (1999) 71 Cal.App.4th 368, 374.) However, 

expert opinion testimony will constitute substantial evidence if it is based on conclusions 

or assumptions supported by evidence in the record, but not if it is simply based on 

conjecture or speculation. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 

651.)

The expert testimony offered in this case provides substantial evidence that 

defendant continued to be a danger due to his severe mental disorder. Debruin testified 

that defendant still posed a danger because he refused to do what was needed to manage 

the condition and had not completed a relapse prevention plan that would help him 

understand how to manage his behaviors once he left the facility. While Debruin 

acknowledged defendant is doing “a lot of things” to get released, he noted defendant is 

not participating in the sex offender treatment needed to reach the next step, which could 

potentially change his status in another 12 months. Defendant’s own expert supported 

this conclusion saying defendant was unlikely to go into remission for his depression 

without engaging in the sex offender treatment. This evidence constitutes substantial 

evidence supporting the third criteria specified in section 2972, subdivision (c).
11.

DISPOSITION

The order recommitting defendant to Coalinga State Hospital until May 31, 2023, 

is affirmed.