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. B 2 9 211 9 (Super. C t. No. 1 8 PT

- 00 498 )

(San Luis Obispo County)

Pierre R

. suffers from a multitude of mental
infirmities. The trial court found that he is a M entally
Disordered Offender. (MDO Act; Pen. Code, § 296 0 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 tre at ment

. We affirm.

1 All statutory references are to the Penal Code unless otherwise stated.2 Procedural History
In 2016 , appellant , a registered sex offender, a ccosted

an 11

- year

- old girl in the presence of her mother. He walked his finger s up the girl’s arm and shoulder, touched her face, and tried to walk away with her. M ot her protested . The police were
summoned and appellant was arrested. Appellant pled no

contest t o 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

. I n 201 8 , the Board of Prison Terms certified appellant as an MDO and committed him to the State Department of Mental Health for treatment. A ppellant filed a petition challenging the decision (§ 2966, subd. (b) )

, and personally waived jury trial.
Doctor An gie Shenouda, a forensic psychologist, opined that appellant suffer ed from schizophrenia and pedophili c disorder, severe mental disorders pursuant to the MDO Act . She
said that appellant had a long history of sexually deviant
behaviors directed at prepu be scent gi r ls. Th e schizophrenia

, described as schizoaffective disorder in appellant’s mental health
records

, was manifested by ha l lucinations, delusions,
di s organized speech

, and paranoia.
D r

. Shenouda opined that the schizophrenia was not in remissi on and that appellant represented a substantial risk of
harm to others because he lack ed insight about his disorder and

treatment

. Appellant also had a history of severe mental illness
related violence. It was a concern because a ppellant ha d an untreated s ubstance 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 Esta blish That

Commitment Offense Involved Force or Violence Appellant conte nd s that the police report of the
commitment offense was inadmissible and violat ed his due process rights i n establishing that the commitment offense
involved force or vio lence. ( § 2962, subd. (e).) Appellant forfeited
the due process theory by not objec ti ng on that ground

. 2 ( People v. Champion (1995) 9 Cal.4th 879, 918 [due process objection waived]; People v. Rodrigues (1994) 8 Ca l.4th 1060, 1116, fn. 20 [same].) On the merits, the re was no due process violation. (See People v. Fudge ( 1994) 7 Cal.4 th 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 v ictim. The probation report
referred to a follow

- up police report pre p ared 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 informa ti on than either a probation report or

senten cing report.” The trial court overruled the objection and

2 I n the alternative, appellant argues that he was denied effective assistance of trial counsel, but he makes no sh owing that counsel’s performance was deficient and that there was

r esulting 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 ineffect iv e legal representation

. . . . ” ( People v. Boyette ( 2002) 29 Cal.4th 381, 424.)4 received the police report into evidence pursuant to section 2962, subdivision (f)

. T he current MDO statute provides that the underlying details of th e 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 , prelim in ary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the Stat e Department of State Hospitals.” ( § 2962, subd. (f) , italics
added .) 3
In People v. O t to (2001) 26 Cal.4 th 200 ( Otto )

, our S upreme C ourt held that mu ltiple hearsay in a probation report

, derived from police reports about the qualifying offense , was admissib l e pursuant to the Sexually V iolent Predators Act (SVP; Welf. & Inst. Code, § 6600, subd

. (a) (3) ) and did n ot v iolate
defendant’ s due process righ ts

. ( Id. at p p. 206

- 207, 2 09

- 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 th e

3 In 2016, the Legislature amended section 2962, subdivision (f) (see Stats. 2016, c h . 430 , § 1, eff. Jan. 1, 2017 (S.B. 1295) in response to People v. Stevens (2015) 62 C al .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 Su pr eme C ourt 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 Analys e s, Analysis of Sen. Bill N o. 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 A ct is “ ‘ to protect the publi c from dangerous felony offenders with mental disorders and to provide mental health
treatment for their disorders. ’ [Cita t ions.] ” ( People v. McKee (2010) 4 7 Cal.4th 1172, 1203.) “ [ C ] ourts routinely rely upon
he a rsay statements containe d 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 ha s all the indicia of reliability to satisfy due p rocess and is expressly referenced in the probation
report

. ( Otto

, supra , 26 Cal.4 th at p. 211

. ) Li ke the probation
report in Otto

, the police report is admissible “ documentary
evidence ” within the meaning of section 2962, subd ivision (f)

. Appellant’s t rial cou nsel showed the police report to Dr

. Shenouda an d asked whether it stated that appellant approached
the victim and stood si x inches away from the victim. A ppellant
corroborate d the details of the police report and admitted that he
walked his fin ge rs up the vic tim’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 Appellan t contends that annoying or molesting a
child is not a crime of force or violence, but under the catchall

pr ovisions of section 2962, subdi vi sions (e)(2)(P) and (e)(2)(Q), the
offense involv ed the implied threat to use force or violence. ( See

e.g., People v . Kor t esmaki (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 vic ti m’s mot h er6 “ ‘ Can your daughter come out to play ? ’ ” T he mother grabbed the
vic tim to ge t her away from appellant , took the victim to a
restroom, and told appellant to go away. A ppellant r eturned 30
minutes later

, reached across the table, and w alked his finger s up the vic t im’s arm, touc hed her face, and pet her head. Appellant’s words and a ctions showed that he wanted t o have a sexual relationship with the victim and he would not take “no” for
an answer. Even a fter the police were c alled, appellant stood
close to the victim

. He claimed that he was the King of England and had the power to a do pt the 11

- year

- old girl

. There was
sufficient evidence of an implied threa t to use force or vi o lence in
the commission of the offense . ( § 2962, subd. ( e )(2)(Q).) 90 Days of Treatment Appellant c ontends t hat he did not receive at least 90 day s treatment for his mental disorder , as required by the MDO
Act

. ( § 2962, subd

. (c) .) The mental health records sh ow that appellan t was treated for schizoaffective disorder . However, appellant argues that schizoaffective disorder is not the same as

“ schi zo phrenia, ” and, there fore , 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 nonqualif yi ng 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.) W e held that the People could not bootstrap the treatment for mood an d 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 subjects7 him to the MDO commitment. [Citation.] Proof that he was

trea te d 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 a ppellant w as 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. A t oral argument, appellant admitted that schizophren ia and s chizoaffective disorder are substantial ly the

same and call for the same treatment

. We accept this
concession

. 4
The medical liter ature supports our conclusion

.

“ Schizoaffective ” means “ pertaining to or exhibiting of both schizophrenic and mood disorde rs (mania and depression )

. ” ( Dorland’s Illustrat e d Medical Dictionar y (28th ed. 1994) p. 1491

. ) The American Psyc h iatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM

- 5), Schizoaffective Disorder, s t ates: “Disting ui shing 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 ? Schizophr enia, pedophilia, sexual dev iancy, mental illness rela ti ng 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 profes si onals.8 disorders with psychotic features is often difficult.” ( Id. at p. 109.) Different diagnostic criteria a re used to make the
distinction and the diagnosis can change over t im e. ( Ibid .)
Unlike Bendovid

, appellant received treatment for his mental
disorder for the full 90 day s

. We reject the form

- over

- substance argument that a mental health expert at a MDO hearing must testify that the
treatment for the sev e re mental disord er matches, word

- for

- word,
the mental disorder which was a ca use 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 so unds 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 un de rstand that he is not even English, let alone the King of England? Appellant ci tes no authority that the treatment for schizophrenia is not substantially the same as sc h izoaffective
disorder or that section 2962, subdivision (c) requires that the
di ag nosis be static during the 90

- day treatment period . That is
what the DSM

- 5 warns about when schizoaffective disorder is diagnos e d and treated . A ppellant’s mental health records bear that out. On September 23, 2017, the treating psychiatrist

, diagnose d a ppellant as suffering from “ Schizoaffective D isorder ”
and “ S chizoaffective D isorder, B ipolar. ” A second entry, made the same day, states that appellant “currently meets criteria for conditional diagnosis of [DSM

- 5] 295.70 Schizoaffective Disorder, Bipol ar Type per hx [i.e., history] and medication treatment.” (Italics added.) The mental health records state it was9 appellant’s “6th term with CDCR, [ and that appellant] has an extensive arrest history (20+ times) since 1990. He is also a PC 290 registran t . . . [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 h ad a history of substance abuse (alc ohol, 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 med ication and suffered fr om 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 Me nt al 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, a ppellant contends that the jury waiver was ineffectual. There is no factual basis for this and t he claim does not require any legal analysis.1 TANGEMAN, J., Dissenting: I respectfully dissent. The record does not s upport 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 disorde r 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 psycholog is t 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 t reatment 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, “Schizoa ff ective 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 dis or der. 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 differen t 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 r eceived 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 men ta l 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 [di ag nostic 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 according ly “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.” ( Ibi d

. ) 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 wou ld 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 t ha t the treatment for schizophrenia is not substantially the same as schizoaffective3 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 pr os ecution’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 appel la nt “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 do es 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]: W ha t 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 o ne 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 i n 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, th ey 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 s ch izoaffective 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 say in g 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 cle ar ly 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 t he 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

, sup ra , 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 fo r 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. Glassma n, Deputy Attorneys General, for Plaintiff and Respondent.