P. v. Cleveland

Filed 8/29/07 P. v. Cleveland 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Domingo Cleveland appeals an order committing him to the California Department of Mental Health for treatment as a mentally disordered offender (MDO), following his conviction for robbery (Pen. Code,  2962, 2966, 211). We conclude substantial evidence supports the court's finding that Cleveland's severe mental disorder was a cause or aggravating factor in the underlying commitment offense, and that he posed a substantial danger of physical harm to others (Pen. Code,  2962). We affirm.

FACTS

Cleveland filed a petition to challenge a decision of the Board of Prison Terms that he qualified as an MDO. He waived his right to a jury trial.

Doctor Krys Hunter, a staff psychologist at Atascadero State Hospital, testified: Cleveland suffers from a schizoaffective disorder, bipolar type, and met all the MDO criteria. His severe mental disorder was a cause or aggravating factor in his robbery offense. When he committed the crime, he was "depressed and hearing lots of voices." His mental illness contributed to his feeling that he was "compelled to engage" in that activity. His disorder was not in remission. Hunter concluded that he represents a substantial danger of physical harm to others because of his disability. He did not comply with treatment, has not addressed his substance abuse problems and is "a high risk for reoffense."

The prosecution also introduced a report by Robert Sargent, Ph.D., a forensic psychologist, who evaluated Cleveland. Sargent concluded that Cleveland met all six criteria for an MDO commitment. During the interview, Cleveland told him that he was experiencing "intense auditory hallucinations at the time of the crime." He said Cleveland "is too mentally disorganized to be able to care [for] himself in the community."

In the defense case, Cleveland introduced an MDO evaluation by Andrea Shelly, Ph.D., a psychologist. She concluded Cleveland did not meet the MDO criteria. She said he does not represent a substantial danger of physical harm to others. She determined that his mental disorder was not a cause or an aggravating factor in his crime. Cleveland told her that he robbed a person at the ATM because "he heard voices telling him to do so." But she did not see anything in the probation officer's report which indicated that Cleveland "was experiencing symptoms of a mental illness."

DISCUSSION

I. The Disorder as a Cause or Aggravating Factor in the Robbery

Cleveland contends there was insufficient evidence to support the finding that his severe mental disorder was a cause or aggravating factor in the commission of the robbery. We disagree.

"The MDO law is a civil commitment scheme targeting state prisoners with severe mental disorders who are about to be released on parole." (People v. Martin (2005) 127 Cal.App.4th 970, 973.) The prosecution must present evidence to establish six criteria for an MDO commitment. (Pen. Code,  2962.) One of the elements which must be established is that "[t]he severe mental disorder was one of the causes of or was an aggravating factor in the commission of a crime for which the prisoner was sentenced to prison." (Id. at subd. (b).)

Here Hunter testified that Cleveland's severe mental disorder was a cause or aggravating factor in the commission of the robbery. She noted he had experienced auditory hallucinations at that time. Sargent also concluded Cleveland's "behavior in the controlling crime was at [least] partially motivated by mental disorganization and hallucination which are symptoms of his severe mental disorder." Sargent noted in his report that Cleveland told him "that he was confused and experiencing intense auditory hallucinations at the time of the crime."

Cleveland claims there is other evidence, including the probation report, which shows he committed robbery for an economic reason, to obtain money for drugs. He argues Hunter's testimony contradicts documentary evidence, was not entirely consistent, was impeached, and her conclusions are incorrect. He notes that Shelly concluded that his disorder was not a cause or aggravating factor in the offense. But we do not weigh the evidence, resolve evidentiary conflicts or decide the credibility of the experts. That is a matter for the trial court. (People v. Martin, supra, 127 Cal.App.4th at p. 975.) We note that Shelly assumed there was nothing in the probation report to corroborate Cleveland's account that he heard voices at the time of the robbery. But the probation report reflects that Cleveland "was not asked to submit a statement" about that offense. Cleveland has not shown why the trial court could not reasonably reject Shelly's conclusions. The evidence is sufficient.

II. Substantial Danger of Physical Harm to Others

Cleveland contends that the evidence is insufficient to support the finding that he represented a substantial danger of physical harm to others. We disagree. There must be evidence that an MDO poses a substantial danger of physical harm to others because of his or her disorder, but proof of a recent overt act is not required. (Pen Code,  2962, subd. (d)(1); People v. Buffington (1999) 74 Cal.App.4th 1149, 1161.)

Here Hunter concluded that Cleveland posed a substantial danger of physical harm to others because of his disorder. She testified that his disorder is at such a level that he is a high risk for reoffense. The trial court could reasonably infer that there were several factors which supported her conclusions. Cleveland was not in remission and was "noncompliant" with treatment. Hunter said he had not addressed his "mental illness or his substance abuse" problems. She noted that he had not recognized "how those elements affect his criminal . . . and violent behaviors." Nor did he "develop a relapse-prevention plan that identifies his risk factors."

Sargent stated that Cleveland "has alarming command hallucinations which instruct him to harm himself and others." He noted that Cleveland "is now saying that he feels he can't control his impulses if released to the community." Hunter's testimony and Sargent's report constitute substantial evidence to support the trial court's findings on this issue. (People v. Pace (1994) 27 Cal.App.4th 795, 798.)

Cleveland claims Hunter's and Sargent's conclusions should be disregarded and notes that Shelly said he did not meet this MDO requirement. But we do not decide the credibility of experts, weigh the evidence or resolve evidentiary conflicts. (People v. Martin, supra, 127 Cal.App.4th at p. 975; People v. Pace, supra, 27 Cal.App.4th at p. 798.) The evidence is sufficient.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Ginger E. Garrett, Judge

Superior Court County of San Luis Obispo

______________________________

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel and Scott A. Taryle, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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