Filed 11/18/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

PIERRE R., 

 Defendant and Appellant.

2d Crim. No. B292119

(Super. Ct. No. 18PT-00498)

(San Luis Obispo County)

Pierre R. suffers from a multitude of mental

infirmities. The trial court found that he is a Mentally 

Disordered Offender. (MDO Act; Pen. Code, § 2960 et seq.).1 His 

range of mental infirmities provides a real challenge for mental 

health professionals. And it is somewhat challenging for the 

courts to “pigeonhole” his multiple disorders into the statutory 

scheme. He appeals the trial court’s order committing him to the 

Department of Mental Health for treatment. We affirm. 

1 All statutory references are to the Penal Code unless 

otherwise stated. 
2

Procedural History

In 2016, appellant, a registered sex offender, accosted

an 11-year-old girl in the presence of her mother. He walked his 

fingers up the girl’s arm and shoulder, touched her face, and tried 

to walk away with her. Mother protested. The police were 

summoned and appellant was arrested. Appellant pled no 

contest to felony annoying or molesting a child under the age of 

18 with a prior conviction (§ 647.6, subds. (a)(1) & (c)(1)). He was 

sentenced to state prison. 

In 2018, the Board of Prison Terms certified 

appellant as an MDO and committed him to the State 

Department of Mental Health for treatment. Appellant filed a 

petition challenging the decision (§ 2966, subd. (b)), and 

personally waived jury trial. 

Doctor Angie Shenouda, a forensic psychologist, 

opined that appellant suffered from schizophrenia and pedophilic

disorder, severe mental disorders pursuant to the MDO Act. She 

said that appellant had a long history of sexually deviant 

behaviors directed at prepubescent girls. The schizophrenia, 

described as schizoaffective disorder in appellant’s mental health 

records, was manifested by hallucinations, delusions, 

disorganized speech, and paranoia. 

Dr. Shenouda opined that the schizophrenia was not 

in remission and that appellant represented a substantial risk of 

harm to others because he lacked insight about his disorder and 

treatment. Appellant also had a history of severe mental illness 

related violence. It was a concern because appellant had an 

untreated substance abuse problem, was not medication 

compliant, and was on probation or supervised release when he 

committed the qualifying offense. 
3

Admissibility of Police Reports to Establish That

Commitment Offense Involved Force or Violence

Appellant contends that the police report of the 

commitment offense was inadmissible and violated his due 

process rights in establishing that the commitment offense 

involved force or violence. (§ 2962, subd. (e).) Appellant forfeited 

the due process theory by not objecting on that ground.2 (People 

v. Champion (1995) 9 Cal.4th 879, 918 [due process objection 

waived]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20 

[same].) 

On the merits, there was no due process violation. 

(See People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103

[application of ordinary rules of evidence under state law does not 

violate a federal constitutional right to present a defense or right 

to fair trial].) Dr. Shenouda testified that the probation report 

stated that appellant touched the victim. The probation report 

referred to a follow-up police report prepared by a police detective 

two days after appellant’s arrest. Appellant argued that the

police report was not admissible under the MDO Act because it is 

“a different level of information than either a probation report or 

sentencing report.” The trial court overruled the objection and 

2 In the alternative, appellant argues that he was denied 

effective assistance of trial counsel, but he makes no showing 

that counsel’s performance was deficient and that there was 

resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 

668, 687; People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) 

“Failure to object rarely constitutes constitutionally ineffective 

legal representation . . . .” (People v. Boyette (2002) 29 Cal.4th 

381, 424.) 
4

received the police report into evidence pursuant to section 2962, 

subdivision (f). 

The current MDO statute provides that the 

underlying details of the commitment offense, “including the use 

of force or violence[] causing serious bodily injury, or the threat to 

use force or violence likely to produce substantial physical harm, 

may be shown by documentary evidence, including, but not 

limited to, preliminary hearing transcripts, trial transcripts, 

probation and sentencing reports, and evaluations by the State 

Department of State Hospitals.” (§ 2962, subd. (f), italics 

added.)3

In People v. Otto (2001) 26 Cal.4th 200 (Otto), our 

Supreme Court held that multiple hearsay in a probation report, 

derived from police reports about the qualifying offense, was 

admissible pursuant to the Sexually Violent Predators Act (SVP;

Welf. & Inst. Code, § 6600, subd. (a)(3)) and did not violate 

defendant’s due process rights. (Id. at pp. 206-207, 209-215; see 

People v. Burroughs (2016) 6 Cal.App.5th 378, 410 [same].) 

There is no reason why this same principle does not apply to the

3 In 2016, the Legislature amended section 2962, 

subdivision (f) (see Stats. 2016, ch. 430, § 1, eff. Jan. 1, 2017 (S.B. 

1295) in response to People v. Stevens (2015) 62 Cal.4th 325 

which held that hearsay testimony by a mental health expert 

based on documentary evidence could not be used at a MDO 

hearing to prove the commitment offense involved force or 

violence or the threat of force or violence. (Id. at p. 339.) The 

Supreme Court stated that “the Legislature is free to create 

exceptions to the rules of evidence as it has done in the SVP 

context.” (Ibid.) That is exactly what section 2962, subdivision 

(f) does. (See Off. of Sen. Floor Analyses, Analysis of Sen. Bill No.

1295 (2015-2016 Reg. Sess.) Aug. 22, 2016, p. 5.)
5

MDO Act (§ 2962, subd. (f)) which mirrors the SVP Act (Welf. & 

Inst. Code, § 6600, subd. (a)(3)). The purpose of the SVP Act and 

the MDO Act is “‘to protect the public from dangerous felony 

offenders with mental disorders and to provide mental health 

treatment for their disorders.’ [Citations.]” (People v. McKee 

(2010) 47 Cal.4th 1172, 1203.) “[C]ourts routinely rely upon 

hearsay statements contained in probation reports to make 

factual findings concerning the details of the crime.” (Otto,

supra, 26 Cal.4th at p. 212.) 

Here the police report has all the indicia of reliability 

to satisfy due process and is expressly referenced in the probation 

report. (Otto, supra, 26 Cal.4th at p. 211.) Like the probation 

report in Otto, the police report is admissible “documentary 

evidence” within the meaning of section 2962, subdivision (f). 

Appellant’s trial counsel showed the police report to Dr.

Shenouda and asked whether it stated that appellant approached 

the victim and stood six inches away from the victim. Appellant 

corroborated the details of the police report and admitted that he 

walked his fingers up the victim’s arm, “pet” the victim, and 

“[p]ut her hair out of her eyes.” The admission of the police 

report and Dr. Shenouda’s testimony about the police report did 

not violate any due process right.

Implied Threat of Force or Violence

Appellant contends that annoying or molesting a 

child is not a crime of force or violence, but under the catchall 

provisions of section 2962, subdivisions (e)(2)(P) and (e)(2)(Q), the 

offense involved the implied threat to use force or violence. (See 

e.g., People v. Kortesmaki (2007) 156 Cal.App.4th 922, 928 & fn. 

3.) Appellant asked the victim for her phone number, said he had 

a website called ILikegirls.com, and asked the victim’s mother 
6

“‘Can your daughter come out to play?’” The mother grabbed the 

victim to get her away from appellant, took the victim to a 

restroom, and told appellant to go away. Appellant returned 30 

minutes later, reached across the table, and walked his fingers 

up the victim’s arm, touched her face, and pet her head.

Appellant’s words and actions showed that he wanted to have a 

sexual relationship with the victim and he would not take “no” for 

an answer. Even after the police were called, appellant stood 

close to the victim. He claimed that he was the King of England 

and had the power to adopt the 11-year-old girl. There was 

sufficient evidence of an implied threat to use force or violence in 

the commission of the offense. (§ 2962, subd. (e)(2)(Q).) 

90 Days of Treatment 

Appellant contends that he did not receive at least 90 

days treatment for his mental disorder, as required by the MDO 

Act. (§2962, subd. (c).) The mental health records show that 

appellant was treated for schizoaffective disorder. However,

appellant argues that schizoaffective disorder is not the same as 

“schizophrenia,” and, therefore, he did not receive treatment for 

the disorder that was the aggravating cause for the underlying 

offense. 

 In People v. Bendovid (2018) 30 Cal.App.5th 585,

defendant was diagnosed and treated in jail for nonqualifying 

disorders (mood and borderline personality disorders) before he 

was diagnosed and treated in prison for the qualifying mental 

disorder (delusional disorder). (Id. at pp. 588-589.) We held that 

the People could not bootstrap the treatment for mood and 

borderline personality disorder in place of treatment for the 

delusional disorder. (Id. at p. 595.) “The People must prove 

Bendovid was treated for the severe mental disorder that subjects 
7

him to the MDO commitment. [Citation.] Proof that he was 

treated for other mental disorders is not sufficient. [Citation.] . . . 

‘Section 2962, subdivision (c) specifically refers to treatment of 

“the” mental disorder, not “a” mental disorder.’ [ Citation.]” 

(Ibid.)

The mental health records state that appellant was 

treated for schizoaffective disorder which, technically, is at 

variance with Dr. Shenouda’s testimony that appellant was 

treated for schizophrenia. This, however, is much ado about 

nothing. At oral argument, appellant admitted that 

schizophrenia and schizoaffective disorder are substantially the 

same and call for the same treatment. We accept this 

concession.4

The medical literature supports our conclusion. 

“Schizoaffective” means “pertaining to or exhibiting of both 

schizophrenic and mood disorders (mania and depression).” 

(Dorland’s Illustrated Medical Dictionary (28th ed.1994) p. 1491.)

The American Psychiatric Association, Diagnostic and Statistical 

Manual of Mental Disorders (5th ed. 2013) (DSM-5), 

Schizoaffective Disorder, states: “Distinguishing schizoaffective 

disorder from schizophrenia and from depressive and bipolar 

4 What is appellant’s disorder or infirmity? Or perhaps we 

should rephrase the question: What are appellant’s disorders and 

infirmities? Schizophrenia, pedophilia, sexual deviancy, mental 

illness relating to violence, substance abuse, schizoaffective 

disorder, paranoia, hallucinations, delusions, disorganized 

speech, lack of insight, or all of the above? Just where to start on 

these problems should be left to the sound judgment of mental 

health professionals. 
8

disorders with psychotic features is often difficult.” (Id. at p. 

109.) Different diagnostic criteria are used to make the 

distinction and the diagnosis can change over time. (Ibid.) 

Unlike Bendovid, appellant received treatment for his mental 

disorder for the full 90 days.

We reject the form-over-substance argument that a

mental health expert at a MDO hearing must testify that the

treatment for the severe mental disorder matches, word-for-word, 

the mental disorder which was a cause for the underlying offense. 

Mental health treatment should be adjusted to the symptoms an 

MDO is then experiencing. Appellant related that he was the 

King of England when arrested. This sounds like schizophrenia, 

the diagnosis for which he claims that went untreated. But the 

mental health reports do not show that appellant continued his 

claim that he was the King of England. Should the 90 days of 

treatment focus on trying to make him understand that he is not 

even English, let alone the King of England? 

Appellant cites no authority that the treatment for 

schizophrenia is not substantially the same as schizoaffective 

disorder or that section 2962, subdivision (c) requires that the 

diagnosis be static during the 90-day treatment period. That is 

what the DSM-5 warns about when schizoaffective disorder is 

diagnosed and treated. Appellant’s mental health records bear 

that out. On September 23, 2017, the treating psychiatrist,

diagnosed appellant as suffering from “Schizoaffective Disorder”

and “Schizoaffective Disorder, Bipolar.” A second entry, made 

the same day, states that appellant “currently meets criteria for 

conditional diagnosis of [DSM-5] 295.70 Schizoaffective Disorder, 

Bipolar Type per hx [i.e., history] and medication treatment.” 

(Italics added.) The mental health records state it was 
9

appellant’s “6th term with CDCR, [and that appellant] has an 

extensive arrest history (20+ times) since 1990. He is also a PC 

290 registrant . . . [and] [h]e has been to outpatient and 

impatient care in the community. He was admitted to Patton 

State Hospital three times in 2005, 2007, and 2011, [and 

appellant] has been receiving mental health services in CDCR

since 2001 . . . .” Appellant had a history of substance abuse 

(alcohol, marijuana, and methamphetamine), three or four 

suicide attempts, paranoia, depression, mood swings, irritability, 

and impulsivity, and told a hospital clinician that he was not 

taking his medication and suffered from attention deficit 

hyperactivity disorder (ADHD), which he described as “‘hyper, I 

forget things.’” 

It took no leap of logic for the trial court to factually 

find that appellant met all the MDO criteria and should be 

committed to the Department of Mental Health for treatment.5

Disposition

 The judgment (MDO commitment order) is affirmed. 

CERTIFIED FOR PUBLICATION.

YEGAN, Acting P. J. 

I concur: 

 

PERREN, J.

5 Finally, appellant contends that the jury waiver was 

ineffectual. There is no factual basis for this and the claim does 

not require any legal analysis.
1

TANGEMAN, J., Dissenting:

I respectfully dissent. The record does not support 

the majority’s conclusion that appellant received 90 days of 

treatment for the disorder for which he was committed as a 

Mentally Disordered Offender (MDO). The majority effectively 

declares that diagnosis and treatment for schizoaffective disorder 

and schizophrenia are interchangeable. That may or may not be 

true as a matter of psychiatric treatment, but it is not the role of 

the court to so declare in the absence of expert testimony in the 

record in support of that conclusion.

Forensic psychologist Dr. Angie Shenouda testified 

that appellant suffered from schizophrenic and pedophilic 

disorders. The prosecution conceded the MDO criteria was not 

met for the pedophilic disorder. 

Shenouda did not opine whether appellant received 

at least 90 days of treatment for his schizophrenic disorder. 

Instead, the prosecution submitted appellant’s treatment records 

from the California Department of Corrections and 

Rehabilitation. The records reflect that appellant was diagnosed 

with, and treated for, “Schizoaffective Disorder” and 

“Schizoaffective Disorder, Bipolar Type.” 

In People v. Bendovid (2018) 30 Cal.App.5th 585, 595 

(Bendovid), we held there was insufficient evidence to show that 

the defendant received at least 90 days of treatment for 

delusional disorder. We concluded that evidence of his treatment 

for an unspecified mood disorder could not be considered towards 

the 90-day treatment for delusional disorder because “the 

different diagnoses meant Bendovid was being diagnosed and 

treated for a different disorder in prison than the two disorders 

he was diagnosed and treated for in jail.” (Id. at p. 590.) 
2

Similarly here, the evidence shows appellant was 

diagnosed and treated by the state hospital for schizoaffective 

disorder, but there is no evidence he received treatment for 

schizophrenic disorder. The majority glosses over this 

fundamental distinction by concluding, without supporting 

evidence in the record, that appellant’s “schizophrenia [was] 

described as schizoaffective disorder in appellant’s mental health 

records.” (Maj. opn. ante, at p. 2.) Schizophrenic disorder and 

schizoaffective disorder are not the same mental disorder. (See 

American Psychiatric Assn., Diagnostic & Statistical Manual of 

Mental Disorders (5th ed. 2013) pp. 99, 105-106 [diagnostic 

criteria for schizophrenic disorder includes a determination that 

“schizoaffective disorder . . . have been ruled out”].) 

The majority concludes that schizoaffective disorder 

“sounds like schizophrenia.” (Maj. opn. ante, at p. 8.) It 

accordingly “reject[s] the form-over-substance argument that a 

mental health expert at [an] MDO hearing must testify that the 

treatment for the severe mental disorder matches, word-for-word, 

the mental disorder which was the cause for the underlying 

offense.” (Ibid.) But different words have different meanings, 

and the prosecution introduced no evidence on the similarity 

between these different disorders at trial. It is not our role to “fill 

in the gap” by speculating how qualified mental health 

professionals would have testified about the similarities (or 

dissimilarities) in the diagnosis and treatment of these two 

distinctive disorders, if they had been asked (which they were 

not).

More troubling is the majority’s statement that 

“[a]ppellant cites no authority that the treatment for 

schizophrenia is not substantially the same as schizoaffective 
3

disorder” or that his diagnosis did not change “during the 90-day 

treatment period.” (Maj. opn. ante, at p. 8.) This turns the 

burden of proof on its head. It is the prosecution’s burden to 

prove that the six criteria of Penal Code section 2962 have been 

satisfied; not appellant’s burden to prove otherwise. (People v. 

Sheek (2004) 122 Cal.App.4th 1606, 1611.)

Finally, I disagree with the majority’s contention that 

appellant “admitted that schizophrenia and schizoaffective 

disorder are substantially the same and call for the same 

treatment” at oral argument. (Maj. opn. ante, at p. 7.) I view the 

colloquy between court and counsel differently.1 Counsel for 

1 The following colloquy occurred between the court and 

counsel:

“[Court]: What does the word schizophrenia mean?

[Counsel]: . . . That would have been a great question for 

the prosecutor to ask the expert witness and put into evidence. 

Because there is no evidence to connect schizophrenia and 

schizoaffective disorder.

[Court]: What is schizoaffective disorder? 

[Counsel]: . . . [T]hat would be the kind of thing the 

prosecutor who had the burden of proof to carry beyond a 

reasonable doubt ought to have thought about when they had 

this gigantic gap in the evidence where on the one hand, they 

submitted the records to prove this element . . . and the records 

says ‘schizoaffective disorder’ and then they put on an expert who 

said this person suffers from schizophrenia without mention 

whatsoever about how those two relate.”
4

Later in argument, the following transpired:

“[Court]: Do you think there’s a difference in the medical 

treatment for a person suffering from schizophrenia and . . . 

schizoaffective disorder?

[Counsel]: . . . I have experience in this and I would say 

‘yes, they are substantially the same; however, . . . let’s say they 

are identical, where’s the evidence of that?’”

Still later, the following occurred:

“[Court]: . . . Is that a concession that there is no 

substantial difference between schizophrenia and schizoaffective 

disorder?

[Counsel]: My understanding is that schizoaffective 

disorder includes schizophrenia plus another disorder, like a 

depressive element. And so, the treatments would overlap at 

least, or if not be identical.

[Court]: You’re saying that if you are treated for 

schizoaffective disorder, you are necessarily treated for 

schizophrenia?

[Counsel]: Yes. I did. 

[Court]: That’s what I thought you said. . . .

[Counsel]: . . . [T]he question is simply whether . . . a trier 

of fact . . . is allowed to fill in that gap of their own personal 

knowledge or guesswork or anything else when there is absolutely 

no evidence in the record to support it.” 
5

appellant clearly and repeatedly argued that any assumptions 

one might make about similarities between these different 

disorders, including the court’s or his own, could not be a 

substitute for evidence in the record. 

Here, the prosecution did not present evidence of the 

similarity between these two disorders, or that treatment of these 

disorders is necessarily the same. Based on this record, the 

“court had no basis to find [appellant] was treated for the 

disorder that was relevant to his commitment.” (Bendovid, 

supra, 30 Cal.App.5th at p. 591.)

CERTIFIED FOR PUBLICATION.

TANGEMAN, J.
Matthew G. Guerrero, Judge

Superior Court County of San Luis Obispo

______________________________

Christopher Lionel Haberman, under appointment by 

the Court of Appeal for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, 

Chief Assistant Attorney General, Lance E. Winters, Assistant 

Attorney General, Scott A. Taryle, Supervising Deputy Attorney 

General, Christopher G. Sanchez, David F. Glassman, Deputy 

Attorneys General, for Plaintiff and Respondent.