Filed 5/21/15 P. v. Castro CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RALPH CASTRO, Defendant and Appellant. 2d Crim. No. B259396 (Super. Ct. No. 14PT00438)

(San Luis Obispo County)

Ralph Castro appeals from the ju dgment entered after the trial court determined that he was a mentally disord ered offender (MDO; Pen. Code, § 2962.) 1 Appellant suffers from exhib itionism, a sexual disorder similar to paraphilia, and contends that the evidence does not support th e finding that he is an MDO. We affirm. Procedural History Doctor Timothy Nastasi, a psychologi st at Atascadero State Hospital, interviewed appellant and appellant's trea tment team, reviewed appellant's medical

1 All statutory references are to the Pe nal Code. The six criteria for an MDO commitment are: the prisoner (1) has a seve re mental disorder; (2) used force or violence in committing the underlyi ng offense; (3) had a mental disorder that caused or was an aggravating factor in the commission of the underlying offense; (4) the disorder is not in remission or capable of being kept in remission with out treatment; (5) the prisoner was treated for the disorder for at least 90 days in the year prior to hi s parole or release; and (6) the prisoner poses a serious threat of physical harm to others by reason of the disorder. (§ 2962 , subd. (d)(1); People v. Clark (2000) 82 Cal.App.4th 1072, 1075- 1076.)2 records and four mental health evaluations, an d testified that appellant meets all the MDO criteria. Appellant suffers from exhibitionist di sorder, a severe mental disorder similar to pedophilia in which appellant displays his gen itals to unsuspecting victims. Since 1984, appellant suffered 10 convictions for indecent exposure, four California Department of

Corrections and Rehabilitation (CDCR) rule violations fo r indecent exposure, and 14 adjudicated cases for exposi ng his genitals. Appellant's 2004 commitment offens es (indecent exposure and resisting arrest) is based on an incident in which ap pellant took his penis out of his pants and masturbated as two teenage girls walked past . The girls tried to ignore appellant and quickly walked away. Appellant grabbed the girls' buttocks and stroked his penis, then followed the girls to a gas station where they called the police. When police officers attempted to place appellant in custody, appella nt threatened to kill the officers and their

families. Doctor Nastasi opined that the seve re mental disorder was a cause or aggravating factor in the commi tment offenses and that appellant was not in remission. Like other paraphilia disorder s, exhibitionistic disorders do not spontaneously go into remission. Doctor Nastasi explained: "The na ture of the disorder is fantasies, desires and intense sexual arousal from exposing himself. We [w]on't know if it's under control . . . until . . . [appellant] completes a [t reatment] program . . . or . . . gets out and . . . expose[s himself] to the unsuspecting targets." Doctor Nastasi opined appellant re presented a substantial danger of physical harm to others by reason of the ment al disorder and appellant 's history of violent

behavior. Two of the 10 convictions involved sexual assaults. In 1999, appellant grabbed a 14-year-old girl, hugged her, and grabbed her buttocks, breasts, and vagina while exposing his penis. The girl struggled with appellant and managed to break free. The

2004 commitment offenses involved a simila r sexual assault in which appellant grabbed the girls' buttocks and chas ed them while exposing himself. Appellant claimed the

victims "overreacted" and "just got it wrong."3 The trial court also considered four mental health evaluations. Dr. Philip Trompetter, a psychologist with the Depa rtment of State Hospitals, opined that

exhibitionism was not a severe mental disord er. Doctor Elaine Tenney, a psychologist opined that appellant did not have a seve re mental disorder because he was not hospitalized before the commitment or found to be incompetent to stand trial. Doctor Jeannette Sanders, a CDCR psychologist, reported that appellant suffered from paraphilia not otherwise sp ecified (sexual assault of minors and exhibitionism), that appellant met all the MDO criteria, and that appellant represented a substantial danger of harm to others by r eason of the disorder and his prior criminal history for assault with a deadly weapon, a ttempted robbery, and resisting arrest. The fourth mental health evaluator, Do ctor Nicholas Minardi, opined that appellant's exhibitionism was a severe mental disorder and that appellant met all the

MDO criteria.

The trial court credited Doctor Nast asi's expert opinion testimony and the reports of Doctors Sanders and Minardi, and found that appellant was an MDO. As in any substantial evidence case, we draw all re asonable inferences and resolve all conflicts in favor of the judgment. ( People v. Miller (1994) 25 Cal.App.4th 913, 919.) It is the exclusive province of the trial judge to determ ine the credibility of a witness and the truth or falsity of the facts on which th e MDO determination depends. ( Ibid .)

Severe Mental Disorder Appellant argues that exhibitionism is a not a severe mental disorder because he displayed no sy mptoms of mental illness a nd received treatment for adjustment disorder which is not a severe mental disorder. Section 2962, subdivision (a)(2) provides that a severe mental disord er includes "an illness or disease or condition that substantially impairs the person's thought, perception of reality, emotional process, or judgment; or which grossly im pairs behavior . . . ." The definition of severe mental

disorder is broad and not confin ed to a list of diseases. ( People v. Starr (2003) 106 Cal.App.4th 1202, 1206 [pedoph ilia meets MDO definition and is consistent with general statutory purpose of protecting the public from violent and dangerous felons].)4 Doctor Nastasi testified that ap pellant's exhibitionism was a sexual disorder, similar to paraphilia. The mental disorder grossly impaired appellant's perception of reality and his behavior, and manifested its elf by recurrent and intense

arousal from deviant sexual behavior. Doct or Nastasi's testimony was corroborated by Doctors Sanders and Minardi who reported th at the exhibitionism was a severe mental disorder that substantially impaired appellant's thoughts and behavior. Appellant argues that two other me ntal health evaluators (Doctors Trompetter and Tenney) reported that exhibiti onism was not a severe mental disorder. On review, we are precluded from reweighing the evidence. The testimony of a single mental health professional is suffi cient to support the judgment. ( People v. Bowers (2006) 145 Cal.App.4th 870, 879; People v. Valdez (2001) 89 Cal.App. 4th 1013, 1018.) Crime of Force or Violence Appellant argues that indecent exposur e is not a crime of force or violence because appellant was not char ged with or convicted of battery, lewd conduct, or a violent offense. Under the MDO statute, th e commitment offense must include the use of force or violence (§ 2962, subd. (e)(2)(P)) or be a crime in which the defendant "expressly or impliedly threatened another w ith the use of force or violence likely to produce substantial physical harm in such a manner that a reasonable person would believe and expect that the force or violence would be used." (§ 2962, subd. (e)(2)(Q).) Appellant exposed his penis, grabbed the victims' buttock s, and chased the victims to the gas station. After the police we re called, appellant fled, returned, and again exposed himself while masturbating. When o fficers tried to make an arrest, appellant

threatened to kill them and th eir families. The act of gr abbing the girls by the buttocks and chasing them satisfies the use of force criterion. (See People v. Valdez, supra, 89 Cal.App.4th at p. 1107 [qualified mental health expert may render an opinion on force or violence criterion in MDO proceeding].) Appella nt argues that he was not charged with or convicted of battery or lewd conduct, bu t there is no MDO require ment that the issue of force be adjudicated at th e time of the conviction. (See People v. Clark

, supra, 82 Cal.App.4th 1082-1084.)5 In People v. Kortesmaki (2007) 156 Cal.App.4th 922, defendant set fire to a dumpster and was convicted of possession of fl ammable materials with the intent to set fire to property. We held that the force or violence criteria was not satisfied but the

commitment offense did involve an implied threat to use for ce or violence for purposes of section 2962, subdivision (e)(2)(Q). ( Id. , at p. 928.) Appellant's act of grabbing and chasing the victims, and his thre at to kill the police officers was, at the very least, an implied threat of force or violence. Disorder Caused or Aggravated the Commitment Offense Appellant next argues that the seve re mental disorder did not cause the commitment offenses. The MDO statute only requi res that the severe mental disorder be one of the causes or an aggravating factor in the commitment offens e. (§ 2962, subd. (b).) Doctors Nastasi, Sanders, and Minardi op ined that the severe mental disorder was an aggravating factor in the commitment offenses because appellant could not control his sexual behavior. The police report indicates that appellant experienced psychiatric symptoms (appellant made "chirping sounds" and grabbed the girls; appellant later stood in front of the gas station, masturbating), consistent with appellant's long-standing history of sexually acting out be haviors. The testimony of Do ctor Nastasi and reports of Doctors Sanders and Minardi support the fi nding that the mental disorder was an aggravating factor in the commi tment offenses. (See e.g., People v. Clark, supra, 82 Cal.App.4th at pp. 1083-1084.) 90 Days of Treatment Appellant argues that he did not receive treatment for his severe mental disorder for 90 days or more w ithin the year prior to his paro le or release date. (§ 2962, subd. (c).) Doctor Sanders re viewed appellant's central pr ison file and reported that appellant was diagnosed as suffe ring from exhibitionism disorder as early as March 2012. "At times since 03/23/12, exhibitionism has been specifically listed on his mental health treatment plan as the focus of treatment." Doctor Nastasi testified that the medical records in January, February and early March 2014 showed a diagnosis of exhibitionistic disorder and that appellant was treated by a ps ychologist, social worker, and psychiatrist.6 There is no requirement that the 90 days of treatment be c onsecutive where, as here, the treatment is planned and approved fo r the severe mental disorder. ( People v. Achrem (2013) 213 Cal.App.4th 153, 157; People v. Dodd (2005) 133 Cal.Ap p.4th 1564, 1567- 1568.) Appellant argues that in 2013, he was diagnosed with an adjustment

disorder rather than exhibitionism and rece ived medication for depression. Appellant

cites People v. Sheek (2004) 122 Cal.App.4th 1606 for th e principle that the mental

disorder on which the MDO comm itment is sought must be th e same mental disorder for

which the defendant was treated. In Sheek, the prisoner was first diagnosed with pedophilia less than 90 days before his parole release date ( Id. , at p. 1611) and there were no medical records that the prisoner was treated specifically for pedophilia. ( Id. , at p. 1609.) The prosecution claimed that the pr isoner took Zoloft for a depressive disorder (Zoloft) which may have incidentally lowe red the prisoner's libido, but that did not satisfy the 90 day treatment criteria. ( Id. , at p. 1611.) Here, Doctors Nastasi, Sanders, and Minardi opined that appellant received treatment for exhibitionism/pedophilia for at least 90 days in the year preceding his release date. Even Doctor Trompetter's repor t, which appellant claims is a favorable report, states that appellant received more than 90 days of treatment in the last 12 months. Four mental health experts ag reed that the 90-day treatment criteria was satisfied. A fifth mental health expert, opined that it was not . The evidence clearly supports the finding that the 90 day treatment criteria was satisfied. (See People v. Bowers, supra, 145 Cal.App.4th at p. 8 79 [single mental health expert opinion constitutes substantial evidence].) Appellant complains that the expert opinion testimony and written evaluations are based on appellant's treatm ent records, which is unreliable hearsay. 2 Appellant did not object, forfeiting the error. ( People v. Miller, supra, 25 Cal.App.4th at

2 We rejected a similar argument in People v. Stevens (2013) formerly 213 Cal.App.4th 1401. Petition for review was gran ted June 12, 2013. (S209643.)7 p. 917; People v. Tafoya (2007) 42 Cal.4th 147, 166.) It is settled that experts may rely on hearsay in formulating their opinions where it is not offered for the truth of the facts stated but merely as the basi s for the expert's opinion. ( People v. Cooper (2007) 148 CalApp.4th 731, 747; People v. Dodd, supra, 133 Cal.App.4th at p. 1569.) Unlike the prisoner in People v. Stevens, supra, formerly 213 Cal.App.4th 1401, appellant admitted

that he received more that 90 da ys of treatment for his mental disorder. Doctor Sanders' evaluation states that appellant "confirmed in [his] current clinical interview that over the past year, he has consistently been in treatment for Exhibitionism." The judgment (MDO commitm ent order) is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.8 Michael L. Duffy, 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 Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney Gene ral, Scott A. Taryle, Supervising Deputy Attorney General, Pamela C. Hamanaka, Deputy Attorney General, for Plaintiff and Respondent.