P. v. Bell

Filed 1/16/07  P. v. Bell CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

                        Daniel Bell, also known as Frank Berry, appeals from the judgment (order of commitment) entered following a court trial in which he was determined to be a mentally disordered offender (MDO).  (Pen. Code, §  2962 et seq.)[1]  He was committed to the California Department of Mental Health for treatment as a condition of his parole.  (Id., §  2966, subd. (c).)  We affirm.

FACTS AND PROCEDURAL HISTORY

                        On March 17, 1999, appellant, while on parole, entered a parked vehicle and repeatedly struck the female occupant on her face and body, breaking her nose in the process.  Appellant drove the vehicle to another location, where he raped the woman and forced her to orally copulate him.  After driving back to the location of the abduction, appellant took the victim's purse and keys and drove away in her vehicle.  He subsequently pleaded no contest to assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) and second degree robbery (§  211), and admitted the allegation that he had inflicted great bodily injury on the victim (§  12022.7).  In exchange for his plea, the prosecution dismissed charges of forcible rape (§  261, subd. (a)(2)), forcible oral copulation (§  288a, subd. (c)(2)), sodomy by use of force (§  286, subd. (c)(2)), anal and genital penetration by force (§  289, subd. (a)(1)), and kidnapping to commit another crime (§  209, subd. (b)(1)).  He was also found to have violated his parole in another matter.  He was sentenced to a total of eight years in state prison.

                        Appellant's parole release date was February 17, 2006.  He was transferred to Atascadero State Hospital on February 28, 2006.  On April 3, 2006, the Board of Prison Terms evaluated Bell and certified him as an MDO.  Appellant filed a petition challenging the MDO certification with the superior court on April 5, 2006.  On June 1, 2006, the court concluded that appellant qualifies as an MDO as described in section 2962 and ordered him committed to the Department of Mental Health for treatment.

                        Appellant was examined and evaluated by his treating psychiatrist, Dr. Joshua Deane, and six psychologists, Drs. Grosso, Davis, Kendall, Kroes, Tenney and Record.  All seven doctors diagnosed appellant with a severe mental disorder.  Drs. Deane, Grosso and Davis diagnosed appellant with schizoaffective disorder.  Drs. Kendall and Kroes concluded that appellant suffers from a psychotic disorder not otherwise specified, while Dr. Tenney and Record found that he suffers from paranoid schizophrenia.  Drs. Deane, Kroes, Tenney and Record agreed that appellant's underlying assault with a deadly weapon offense was an offense in which he had used force and violence and caused great bodily injury and that his severe mental disorder was a cause or an aggravating factor in that offense.  (See §  2962, subds. (a) & (b).)  Dr. Deane noted that appellant had told him he had heard voices telling him to commit the crimes that resulted in the underlying offense, and that he believed he was pursuing a romantic relationship with his victim, whom he did not know.  Drs. Grosso, Davis and Kendall found no evidence that appellant was suffering from symptoms of his severe mental illness at the time of his controlling offense. 

                        Drs. Deane, Kendall, Kroes, Tenney and Record all found that appellant's severe mental disorder was not in remission or could not be kept in remission without treatment at the time of the BPT hearing.  Dr. Deane noted that appellant continued to hear voices as of March 2006, repeatedly refused his medication, and continued to suffer from longstanding substance abuse problems.

                        Drs. Deane, Kroes, Tenney and Record concluded that appellant represented a substantial danger to the safety of others by reason of his severe mental disorder.  In making that determination, Dr. Deane noted that appellant had to be placed in a room by himself at Atascadero State Hospital because of his repeated threats of physical harm against his roommates.

                        Appellant testified that the victim of the underlying offense was his girlfriend, and that the sexual charges against him had been dropped because she had initiated the sexual contact between them.  He denied hearing voices or refusing to take his medication at the time of the controlling offense, and denied hearing any voices in the past year.  He also denied any substance abuse or disciplinary problems, and denied allegations that he had exposed himself to a female officer.

                        We appointed counsel to represent appellant in this appeal.  After reviewing the record, counsel filed an opening brief raising no issues and requesting that this court independently examine the record pursuant to People v. Wende (1979) 25 Cal.3d 436.

                        On October 18, 2006, we advised appellant that he had 30 days in which to submit a written brief or letter stating any contentions or arguments he wished us to consider.  He did not respond.

                        We have reviewed the entire record and are satisfied that appellant's attorney has fully complied with his responsibilities and that no arguable issues exist.  (People v. Wende, supra, 25 Cal.3d at p. 441.)

                        The judgment (order of commitment) is affirmed.

                        NOT TO BE PUBLISHED.

                                                                        PERREN, J.

We concur:

                        GILBERT, P.J.

                        YEGAN, J.

Charles S. Crandall, Judge

Superior Court County of San Luis Obispo

______________________________

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

                        No appearance for Plaintiff and Respondent.

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            [1] All statutory references are to the Penal Code.