People v. Harrison

Filed 10/31/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S199830

v. )

) Ct.App. 4/2 E051465

KELVIN HARRISON, )

) San Bernardino County

Defendant and Appellant. ) Super. Ct. No. FELSS1001624

____________________________________)

Penal Code section 2962, which is part of the Mentally Disordered

Offender (MDO) Act, requires civil commitment of a state prisoner during and

after parole when a chief psychiatrist of the Department of Corrections and

Rehabilitation has certified that the prisoner suffers from a severe mental disorder

that is not or cannot be kept in remission without treatment, that the disorder was

one of the causes of or an aggravating factor in the prisoner‟s qualifying crime,

that the prisoner has been in treatment for the disorder for at least 90 days within

the year preceding release on parole, and that the prisoner represents a substantial

danger of physical harm to others by reason of the disorder. (Pen. Code, § 2962,

subd. (d)(1).) A prisoner may challenge the MDO certification by requesting a

hearing before the Board of Parole Hearings (Board) and, if unsuccessful, in

superior court as to whether the prisoner “meets the criteria in Section 2962.”

(Pen. Code, § 2966, subd. (a); see also id., subd. (b).)

What constitutes “the criteria in section 2962”? The Court of Appeal

concluded that the “criteria” to be considered by the trier of fact at the superior

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court hearing include not only the substantive criteria that were used by mental

health professionals to determine whether the prisoner was an MDO, but also the

procedures by which the MDO determination was made—such as whether the

person in charge of the prisoner‟s treatment at the Department of Corrections and

Rehabilitation and a practicing psychiatrist or psychologist from the State

Department of State Hospitals evaluated the prisoner at a facility of the

Department of Corrections and Rehabilitation, whether the evaluators concurred as

to the prisoner‟s condition, and whether a chief psychiatrist of the Department of

Corrections and Rehabilitation certified the prisoner as an MDO to the Board.

(Pen. Code, § 2962, subd. (d)(1), (2).) The Court of Appeal relied on the absence

of evidence before the trier of fact that appellant Kelvin Harrison had been

“evaluated by „the person in charge of [his] treatment‟ ” or “by „a practicing

psychiatrist or psychologist from the State Department of [State Hospitals]” or that

he “was certified by the chief psychiatrist” to conclude that there was “insufficient

evidence” to support what the Court of Appeal characterized as “the evaluation

and certification criterion” of Penal Code section 2962. The Court of Appeal thus

reversed the judgment classifying Harrison as an MDO and ordered a new hearing.

We conclude the Court of Appeal erred. The evaluation and certification

provisions of Penal Code section 2962 specify the procedures by which an MDO

determination is initiated; they do not constitute the statutory criteria by which the

trier of fact at a hearing decides whether a prisoner is or is not an MDO. We

therefore reverse the Court of Appeal and remand for further proceedings.

BACKGROUND

Kelvin Harrison was convicted of battery with serious bodily injury (Pen.

Code, § 243, subd. (d)) and sentenced to two years in prison in March 2009. He

was due for release on parole on February 28, 2010, but was required to accept

treatment as an MDO. On April 5, 2010, the Board affirmed Harrison‟s

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certification as an MDO under Penal Code1 section 2962. On April 23, 2010,

Harrison petitioned for a hearing in superior court under section 2966, subdivision

(b) to challenge the Board‟s determination. Jury trial was waived.

At the bench trial, Dr. Robert Suiter, a forensic psychologist with an

expertise in evaluating MDO‟s, testified that he interviewed Harrison at the

Board‟s request on March 16, 2010. He also examined Harrison‟s two previous

MDO evaluations, his psychiatric records, and certain documents from his prison

file.

Dr. Suiter diagnosed Harrison, who had been discharged from the military

in 1983 with a diagnosis of schizophrenia and depression, as suffering from

schizophrenia, paranoid type—a severe mental disorder that impaired his thoughts

and perceptions of reality and grossly impaired his behavior. Harrison‟s most

prominent symptoms were his paranoid and grandiose delusions that San Luis

Obispo County officials and law enforcement were conspiring against him or his

family and were trying to do him harm. In Dr. Suiter‟s opinion, Harrison was not

in remission and lacked insight into his disorder.

Dr. Suiter opined that Harrison‟s schizophrenia was an aggravating factor

in or cause of the crime that resulted in his conviction of battery with serious

bodily injury. At the time of the offense, Harrison believed that grapes in a bag on

the ground were filled with blood, which he interpreted to mean that the victim

intended to harm him. In response, defendant struck the victim several times with

a pipe. Dr. Suiter also testified that Harrison represented a substantial danger of

physical harm to others by reason of his schizophrenia, in that he was prone to

misinterpret environmental cues to suggest he was at physical risk. Without

1 All further unspecified statutory references are to the Penal Code.

3

insight into his mental disorder, Harrison was unable to control his behavior and

unlikely to seek treatment and therefore presented the “on-going potential” of

continuing to commit violent crimes.

Harrison had received well over 90 days of treatment within the prior year,

both at Patton State Hospital and, before that, at the prison.

Harrison testified that he did not recognize Dr. Suiter and did not recall

being interviewed by him. Harrison admitted he had been diagnosed with

schizophrenia and depression when he was discharged from the military, but said

he had received excellent treatment from the Department of Veterans Affairs

before moving to San Luis Obispo. He did not believe his mental disorders

contributed to his crime. When asked whether he currently suffers from a mental

disorder, Harrison replied, “Yes, sir. I do suffer from being very concerned about

my family members, my mother and sister, because I‟m the only male of the

household.” He also insisted that his mental disorder did not have “anything” to

do with the thousands of communications he has sent officials in San Luis Obispo.

On July 21, 2010, the superior court determined that Harrison met the

criteria of an MDO. The court ordered he be committed to the State Department

of State Hospitals for an additional year, until April 5, 2011.

The Court of Appeal reversed. It found insufficient evidence in the record

of the superior court hearing that Harrison, prior to the hearing, had been

evaluated and certified by the personnel specified in section 2962, subdivision (d),

and held that the absence of such evidence required reversal of the judgment

determining him to be an MDO.

We granted the People‟s petition for review. After review was granted and

briefing was completed, Harrison‟s counsel informed us that a petition to extend

Harrison‟s commitment under section 2970 had been heard and denied in San Luis

Obispo County Superior Court and that Harrison was released from custody upon

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the completion of his parole on February 28, 2013. As both parties concede, the

issue in this appeal is now moot as to Harrison. At their request, though, we will

exercise our inherent discretion to resolve the issue concerning the scope of the

“criteria” that must be proved to the trier of fact at a hearing in superior court

under section 2966, subdivision (b). The issue is one of broad public interest that

is likely to recur, and the relatively short MDO commitment may otherwise cause

the question to evade review. (Blakely v. Superior Court (2010) 182 Cal.App.4th

1445, 1455, fn. 3; see generally San Jose Mercury-News v. Superior Court (1982)

30 Cal.3d 498, 501, fn. 2.)

DISCUSSION

Enacted in 1985, the MDO Act requires that an offender who has been

convicted of a specified felony related to a severe mental disorder and who

continues to pose a danger to society receive appropriate treatment until the

disorder can be kept in remission. (Lopez v. Superior Court (2010) 50 Cal.4th

1055, 1061.) “The MDO Act has the dual purpose of protecting the public while

treating severely mentally ill offenders.” (Ibid.)

An initial MDO commitment occurs as a condition of parole, and is

governed by section 2962. The initial MDO commitment is triggered by a

certification by a chief psychiatrist of the Department of Corrections and

Rehabilitation that the prisoner has a severe mental disorder, that the disorder is

not in remission or cannot be kept in remission without treatment, that the disorder

was a cause of or an aggravating factor in an enumerated crime for which the

prisoner was sentenced to prison, that the prisoner has been in treatment for the

disorder for 90 days or more in the year preceding release on parole, and that the

prisoner represents a substantial danger of physical harm to others because of the

disorder. (§ 2962, subd. (d)(1).)

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Challenges to an MDO certification are governed by sections 2964 and

2966. Section 2964, subdivision (a) provides that “[a]ny prisoner who is to be

required to accept treatment pursuant to Section 2962 shall be informed in writing

of his or her right to request a hearing pursuant to Section 2966.” Section 2966,

subdivisions (a) and (b) set forth the procedure by which an MDO may request a

hearing to challenge the validity of the initial commitment. A prisoner who

disagrees with the MDO certification decision may request a hearing before the

Board “for the purpose of proving that the prisoner meets the criteria in Section

2962.” (§ 2966, subd. (a); see § 5075, subd. (a) [all statutory references to the

Board of Prison Terms now refer to the Board of Parole Hearings].) If the

prisoner disagrees with the Board‟s determination that he or she “meets the criteria

of Section 2962,” the prisoner may file a petition for a hearing in the superior

court “on whether he or she, as of the date of the Board . . . hearing, met the

criteria of Section 2962.” (§ 2966, subd. (b).) At the superior court hearing, the

burden is on the People to establish the criteria of section 2962 beyond a

reasonable doubt. (Ibid.)

What, then, are the criteria of section 2962? The opening clause of section

2962 provides that “the State Department of State Hospitals shall provide the

necessary treatment” to a prisoner “who meets the following criteria.” Six

subdivisions follow the colon placed at the end of the opening clause.

Some subdivisions of section 2962 describe the substantive bases for

determining whether a prisoner qualifies as an MDO. For example, subdivision

(a) requires the prisoner to have “a severe mental disorder that is not in remission

or cannot be kept in remission without treatment,” and defines the terms “ „severe

mental disorder‟ ” and “ „remission‟ ”; subdivision (b) requires the severe mental

disorder be “one of the causes of” or “an aggravating factor in the commission of a

crime for which the prisoner was sentenced to prison”; and subdivision (c)

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requires the prisoner have “been in treatment for the severe mental disorder for 90

days or more within the year prior to the prisoner‟s parole or release.”

Some of the subdivisions of section 2962 define terms used in other

subdivisions. Subdivision (e) enumerates the qualifying crimes for which the

prisoner was sentenced to prison in subdivision (b). Subdivision (f) defines

“ „substantial danger of physical harm‟ ” as used in subdivision (d)(1) and

elsewhere in the chapter. (See, e.g., §§ 2966, subd. (c), 2970, 2972, subds. (c),

(e).)

Section 2962, subdivision (d), which is quite lengthy, sets forth both the

criteria by which specified mental health professionals are to determine whether

the prisoner qualifies as an MDO and the procedures by which that evaluation and

certification is to be conducted:

“(1) Prior to release on parole, the person in charge of treating the prisoner

and a practicing psychiatrist or psychologist from the State Department of State

Hospitals have evaluated the prisoner at a facility of the Department of

Corrections and Rehabilitation, and a chief psychiatrist of the Department of

Corrections and Rehabilitation has certified to the Board of Parole Hearings that

the prisoner has a severe mental disorder, that the disorder is not in remission, or

cannot be kept in remission without treatment, that the severe mental disorder was

one of the causes or was an aggravating factor in the prisoner's criminal behavior,

that the prisoner has been in treatment for the severe mental disorder for 90 days

or more within the year prior to his or her parole release day, and that by reason of

his or her severe mental disorder the prisoner represents a substantial danger of

physical harm to others. For prisoners being treated by the State Department of

State Hospitals pursuant to Section 2684, the certification shall be by a chief

psychiatrist of the Department of Corrections and Rehabilitation, and the

evaluation shall be done at a state hospital by the person at the state hospital in

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charge of treating the prisoner and a practicing psychiatrist or psychologist from

the Department of Corrections and Rehabilitation.

“(2) If the professionals doing the evaluation pursuant to paragraph (1) do

not concur that (A) the prisoner has a severe mental disorder, (B) that the disorder

is not in remission or cannot be kept in remission without treatment, or (C) that the

severe mental disorder was a cause of, or aggravated, the prisoner‟s criminal

behavior, and a chief psychiatrist has certified the prisoner to the Board of Parole

Hearings pursuant to this paragraph, then the Board of Parole Hearings shall order

a further examination by two independent professionals, as provided for in Section

2978.

“(3) If at least one of the independent professionals who evaluate the

prisoner pursuant to paragraph (2) concurs with the chief psychiatrist's

certification of the issues described in paragraph (2), this subdivision shall be

applicable to the prisoner. The professionals appointed pursuant to Section 2978

shall inform the prisoner that the purpose of their examination is not treatment but

to determine if the prisoner meets certain criteria to be involuntarily treated as a

mentally disordered offender. It is not required that the prisoner appreciate or

understand that information.”

Harrison contends that everything in section 2962 following the colon is

part of the MDO criteria, including the evaluation and certification procedure.

Under this interpretation, the trier of fact would have to find not only that the

prisoner has a severe mental disorder, but also that the person in charge of treating

the prisoner and a practicing psychiatrist or psychologist agree (after conducting

an evaluation at a facility of the Department of Corrections and Rehabilitation)

that the prisoner has a severe mental disorder, and that a chief psychiatrist of the

Department of Corrections and Rehabilitation has so certified. (§ 2962, subds. (a),

(d)(1), (2).) Similarly, the trier of fact would have to find not only that the

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disorder is not in remission or cannot be kept in remission without treatment, but

also that the person in charge of treating the prisoner and a practicing psychiatrist

or psychologist agree (again, after conducting an evaluation at a facility of the

Department of Corrections and Rehabilitation) that the disorder is not in remission

or cannot be kept in remission without treatment, and that a chief psychiatrist of

the Department of Corrections and Rehabilitation has so certified. (Ibid.) And the

trier of fact would have to find not only that the disorder was a cause of, or

aggravated, the prisoner‟s criminal behavior, but also that the specified individuals

evaluated the prisoner at the requisite facility and agreed that the disorder was a

cause of, or aggravated, the criminal behavior, and that a chief psychiatrist so

certified. (§ 2962, subds. (b), (d)(1), (2).) In the event the person in charge of

treating the prisoner and a practicing psychiatrist or psychologist did not agree as

to these findings, the trier of fact presumably would then determine whether two

independent professionals had been appointed to evaluate the prisoner, whether at

least one of the independent professionals agreed the prisoner suffers from a

severe mental disorder that is not in remission and that was a cause of or

aggravated the criminal behavior, and whether the independent professionals who

examined the prisoner informed the prisoner “that the purpose of their

examination is not treatment but to determine if the prisoner meets certain criteria

to be involuntarily treated as a mentally disordered offender.” (§ 2962, subd.

(d)(2), (3).)

The People, on the other hand, reason that section 2962 specifies not only

the criteria for an MDO commitment—i.e., the criteria used by the mental health

professionals and the hearings by the Board and superior court—but also the

procedures by which the MDO determination is to be made. A prisoner thus

qualifies as an MDO if he or she suffers from a severe mental disorder that is not

in remission or cannot be kept in remission without treatment (§ 2962, subds. (a),

9

(d)(1)), the disorder was a cause of or aggravating factor in the commission of the

qualifying felony for which he or she was sentenced to prison (id., subds. (b),

(d)(1), (e)), the prisoner has been in treatment for the disorder for at least 90 days

in the preceding year (id., subds. (c), (d)(1)), and the prisoner represents a

substantial danger of physical harm to others by reason of the disorder (id., subds.

(d)(1), (f)). The evaluation and certification procedure set forth in subdivision (d)

of section 2962, by contrast, identifies who is to conduct the evaluations, where

the evaluations are to take place, what happens when the evaluators do not agree,

and who is to certify the MDO finding to the Board—but compliance with those

procedures, while required by the statute, is not part of the determination by the

trier of fact at the hearing as to whether the prisoner meets the criteria of an MDO.

“As in any case involving statutory interpretation, our fundamental task

here is to determine the Legislature‟s intent so as to effectuate the law‟s purpose.

[Citation.] We begin by examining the statute‟s words, giving them a plain and

commonsense meaning. [Citation.]” (People v. Murphy (2001) 25 Cal.4th 136,

142.) “ „When the language of a statute is clear, we need go no further.‟

[Citation.] But where a statute‟s terms are unclear or ambiguous, we may „look to

a variety of extrinsic aids, including the ostensible objects to be achieved, the evils

to be remedied, the legislative history, public policy, contemporaneous

administrative construction, and the statutory scheme of which the statute is a

part.‟ ” (In re M.M. (2012) 54 Cal.4th 530, 536.)

What “the following criteria” means in the context of section 2962 is

ambiguous. The reference to “the following criteria” could be read to imply that

“criteria” is defined to be everything that follows the opening clause.

Alternatively, “the following criteria” could be read to refer simply to the criteria

that appear in the body of the statute. Moreover, the word “criteria” can have

multiple meanings. The word most often has been used both by the Legislature

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and by California courts to distinguish the substantive basis for decision from the

procedures by which that decision is to be made. (See, e.g., Bus. & Prof. Code,

§ 5094, subd. (d); Health & Saf. Code, § 19957.5, subd. (c); Pen. Code, §§ 1174.2,

subd. (b), 13864, subd. (a); Pub. Res. Code, § 5756; Welf. & Inst. Code, § 726.5,

subd. (a); Manduley v. Superior Court (2002) 27 Cal.4th 537, 565;

Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 168; The Formula, Inc. v.

Superior Court (2008) 168 Cal.App.4th 1455, 1465; accord, Massachusetts

Trustees of Eastern Gas & Fuel Associates v. United States (1964) 377 U.S. 235,

248.) On the other hand, the Legislature and our courts have occasionally

recognized the existence of “procedural criteria.” (See, e.g., Ed. Code, § 56100,

subd. (g); Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19

Cal.4th 851, 858; City of Burbank v. Burbank-Glendale-Pasadena Airport

Authority (2003) 113 Cal.App.4th 465, 472.) Accordingly, whether the evaluation

and certification procedure constitutes part of the “criteria” under section 2962

cannot be determined from the plain language of the statute alone. We therefore

turn to extrinsic aids.

The legislative history, for the most part, confirms the distinction between

the substantive criteria by which the specified mental health professionals (and, if

necessary, the Board and superior court) determine whether a prisoner is an MDO

and the procedures by which that determination is to be made. The criteria for

determining whether a prisoner qualified as an MDO were initially set forth in

former section 2960, subdivision (b)(1)-(5), which closely resembled present

section 2962, subdivisions (a)-(e). (Stats. 1985, ch. 1419, § 1, p. 5011.) An

analysis by the Senate Judiciary Committee of the 1985 bill that became former

section 2960 described the “Affected prisoners” to be those “who met the

following criteria”: (1) “The prisoner had a mental disorder that was not in

remission or that could not be kept in remission”; (2) “The mental disorder caused,

11

was one of the causes of, or was an aggravating factor in the commission of the

crime for which the prisoner was sentenced”; (3) “The prisoner had been in

treatment for 90 days or more for the mental illness”; and (4) “The prisoner was

convicted of a crime in which she used force or violence and caused serious bodily

injury.” (Sen. Com. on Judiciary, Ofc. Of Sen. Floor Analyses, analysis of Sen.

Bill No. 1296 (1985-1986 Reg. Sess.) as amended Apr. 18, 1985, pp. 4-5.) The

committee analysis also identified which mental health professionals “would have

to certify the above criteria to the Board.” (Id. at p. 5, italics added.) A

subsequent analysis by the Senate Rules Committee likewise identified the mental

health professionals who “would have to certify the prisoner met the criteria to the

Board” and stated that “prisoners who met the specified criteria [were] required to

be treated by the Department of Mental Health.” (Sen. Rules Com., Analysis of

Sen. Bill No. 1296 (1985-1986 Reg. Sess.) as amended Sept. 10, 1985, p. 3.)

Enrolled bill reports by the two executive branch agencies that gained important

responsibilities under the bill, the former Department of Corrections and the

former Department of Mental Health, similarly described the “commitment

criteria” as the substantive “criteria” listed above. (Cal. Dept. of Mental Health,

Enrolled Bill Rep. on Sen. Bill No. 1296 (1985-1986 Reg. Sess.) as amended June

25, 1985, p. 2; see also Cal. Dept. of Corrections, Enrolled Bill Rep. on Sen. Bill

No. 1296 (1985-1986 Reg. Sess.) Sept. 25, 1985, p. 2-3.)

The only part of the legislative history to suggest that the evaluation and

certification procedure was part of the “criteria” for identifying MDO‟s were those

bill summaries prepared by the Department of Finance, which added to the four

criteria in the preceding paragraph a “certification by Corrections and/or Mental

Health that 1) [a severe mental disorder that is not in remission or cannot be kept

in remission] or 2) [the disorder caused or aggravated the commission of the crime

for which the prisoner was sentenced] above exist or that the inmate will not

12

follow appropriate voluntary treatment” and then summarily concluded that

“[p]risoners meeting these criteria will be committed to the Department of Mental

Health for inpatient treatment.” (E.g., Dept. of Finance, Summary of Sen. Bill No.

1296 (1985-1986 Reg. Sess.) as amended Sept. 10, 1985, pp. 1-2, italics added.)

We are not persuaded that the Department of Finance summaries are entitled to

much weight, since they flatly misstate what must be certified to the Board.

Former section 2960, subdivision (b)(4) did not treat the existence of a mental

disorder that is not in remission and the existence of a mental disorder that caused

or aggravated the commission of the crime as disjunctive factors; rather, the statute

explicitly required certification of both. Moreover, an inmate‟s refusal to follow

voluntary treatment was merely one of the ways to establish that the mental

disorder was not or could not be kept in remission (In re Qawi (2004) 32 Cal.4th

1, 24; § 2962, subd. (a)(3)); it was not a substitute for the existence of the mental

disorder or its role in the commission of the crime for which the prisoner was

sentenced. (Compare Dept. of Finance, Summary of Sen. Bill No. 1296, supra, at

p. 1 with former § 2960, subd. (b)(4).)

The legislative history of subsequent amendments to the MDO Act further

evidences the Legislature‟s understanding of the distinction between the

substantive MDO criteria and the procedures that govern the MDO determination.

(See In re Ramon A. (1995) 40 Cal.App.4th 935, 940, fn. 2.) An analysis of the

1987 amendment to section 2962 by the Assembly Committee on Public Safety

listed “the following criteria” for an MDO determination: (1) “The prisoner has a

severe mental disorder”; (2) “The disorder cannot be kept in remission without

treatment”; (3) “The disorder was one of the causes or was an aggravating factor

in the prisoner‟s criminal behavior”; (4) “The prisoner was convicted of a violent

felony, as specified”; and (5) “The prisoner has received treatment for 90 days or

more prior to release.” (Assem. Com. on Public Safety, Analysis of Sen. Bill No.

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425 (1987-1988 Reg. Sess.) as amended May 4, 1987, p. 2.) The Senate Rules

Committee explained the purpose of the 1987 amendment by noting that one of

the existing criteria “is that the prisoner has been in treatment of the disorder for

90 days or more within the year prior to parole or release” and that the chief

psychiatrist was already required “to certify to the Board that the prisoner meets

all the criteria except the 90 day prior treatment. This bill would require the

psychiatrist to certify that the prisoner meets the 90 day prior treatment and the use

of force, violence, or bodily harm requirements.” (Sen. Rules Com., Analysis of

Sen. Bill No. 425 (1987-1988 Reg. Sess.) as amended May 4, 1987, p. 2.) The

amendment‟s effect was thus to “make the criteria for certification that is presently

used by psychotherapist[s] conform to the criteria . . . used at the certification

hearing.” (Bd. of Prison Terms, Analysis of Sen. Bill No. 425 (1987-1988 Reg.

Sess.) as amended May 4, 1987, p. 3.) Nowhere did the Legislature indicate that

the evaluation and certification procedures should be considered part of the criteria

for an MDO determination. Indeed, such a construction would make no sense in

light of the Legislature‟s efforts to “conform” the criteria used by the

psychotherapists to certify a prisoner as an MDO to the criteria used in reviewing

that certification. (Ibid.)

Longtime administrative construction of section 2962 affirms that the

relevant criteria are the criteria used by the specified mental health professionals in

classifying a prisoner as an MDO. A regulation promulgated by the Board of

Parole Hearings interpreting section 2962 (see Cal. Reg. Notice Register 87, No.

41-Z, pp. 335-336) provides that “[a]s a condition of parole, a prisoner who meets

the following specified criteria shall be required to be treated by the State

Department of Mental Health and the State Department of Mental Health shall

provide the necessary treatment:

“(a) The prisoner has a severe mental disorder.

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“(b) The mental disorder is not in remission, or cannot be kept in remission

without treatment.

“(c) The 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.

“(d) The crime referred to in section 2571, subdivision (c), for which the

prisoner was sentenced to prison, must have been a crime in which the prisoner

used force or violence, or caused serious bodily injury, and must have occurred on

or after January 1, 1986.

“(e) The prisoner has been in treatment for the severe mental disorder for

ninety (90) days or more within the year prior to the prisoner‟s parole or release.

“(f) The prisoner represents a substantial danger of physical harm to others

by reason of his or her severe mental disorder. Substantial danger of physical

harm does not require proof of a recent overt act.” (Cal. Code of Regs., tit. 15,

§ 2571; see also id., § 2570, subds. (a) [defining “Certification Hearing”], (d)

[defining “Mentally Disordered Offender”].) The regulation nowhere suggests

that compliance with the evaluation and certification procedures was an additional

criterion.

Although the interpretation of a statute is ultimately a legal question for a

court (Sara M. v. Superior Court (2005) 36 Cal. 4th 998, 1011), we “ „must give

great weight and respect to an administrative agency‟s interpretation of a statute

governing its powers and responsibilities. [Citation.] Consistent administrative

construction of a statute, especially when it originates with an agency that is

charged with putting the statutory machinery into effect, is accorded great

weight.‟ ” (Ste. Marie v. Riverside County Regional Park & Open-Space Dist.

(2009) 46 Cal.4th 282, 292.) Deference to the administrative interpretation of a

statute is further justified when the regulation was reasonably contemporaneous

15

with the adoption of the statute and was promulgated in conformance with formal

procedures. (Sara M., supra, 36 Cal.4th at p. 1013.)

The interpretive regulation here satisfies each of these elements. The

regulation specifying the criteria for treatment as an MDO was promulgated after

public notice and comment by the Board of Parole Hearings, which is tasked with

conducting “a hearing if so requested, for the purpose of proving that the prisoner

meets the criteria in Section 2962.” (§ 2966, subd. (a).) This regulation tracks in

relevant part the original 1987 emergency regulation (compare Cal. Code Regs.,

tit. 15, former § 2571, Register 87, No. 50 (Dec. 12, 1987) with id., tit. 15, § 2571,

Register 91, No. 11 (Feb. 4, 1991)), which was reasonably contemporaneous with

the adoption of the MDO statute—a statute that applied only to persons who

committed their crimes on or after January 1, 1986, and were eligible for parole.

And the Board‟s interpretation has been consistent over the past 26 years.

Accordingly, we will not overturn the Board‟s definition of the section 2962

criteria “ „ “unless clearly erroneous.” ‟ ” (Sara M. v. Superior Court, supra, 36

Cal.4th at p. 1012.) No clear error appears.

Our interpretation also promotes the purpose of the MDO Act, which is set

forth plainly in the legislative findings and declarations that were codified as

former section 2960, subdivision (a) and that now appear in present section 2960:

“The Legislature finds that there are prisoners who have a treatable, severe mental

disorder that was one of the causes of, or was an aggravating factor in the

commission of the crime for which they were incarcerated. Secondly, the

Legislature finds that if the severe mental disorders of those prisoners are not in

remission or cannot be kept in remission at the time of their parole or upon

termination of parole, there is a danger to society, and the state has a compelling

interest in protecting the public. Thirdly, the Legislature finds that in order to

protect the public from those persons it is necessary to provide mental health

16

treatment until the severe mental disorder which was one of the causes of or was

an aggravating factor in the person‟s prior criminal behavior is in remission and

can be kept in remission.” If a factfinder has determined beyond a reasonable

doubt that the prisoner has a severe mental disorder that is not or cannot be kept in

remission without treatment, that the disorder was a cause of or aggravated the

qualifying crime for which the prisoner is incarcerated, that the prisoner received

treatment for at least 90 days in the year preceding parole, and that by reason of

the disorder the prisoner represents a substantial danger of physical harm to others,

the public‟s interest in safety and the prisoner‟s need for appropriate treatment are

not furthered by having the trier of fact, rather than the court, determine whether a

particular evaluation or certification was performed by a specified individual or at

a particular place.

We find additional support for our conclusion by examining the Sexually

Violent Predators Act (SVP Act; Welf. & Inst. Code, § 6600 et seq.), another

involuntary commitment scheme that shares the same purpose as the MDO Act:

“ „to protect the public from dangerous felony offenders with mental disorders and

to provide mental health treatment for their disorders.‟ ” (People v. McKee (2010)

47 Cal.4th 1172, 1203.) Before a commitment petition may be filed under the

SVP Act, there must be a concurrence of two evaluators, who are practicing

psychiatrists or psychologists, that the prisoner has a diagnosed mental disorder

such that “he or she is likely to engage in acts of sexual violence without

appropriate treatment and custody.” (Welf. & Inst. Code, § 6601, subd. (d); see

Reilly v. Superior Court (2013) 57 Cal.4th 641, 647.) The concurrence of these

evaluators, however, does not need to be proved to the trier of fact. Like the

evaluation and certification procedural safeguards in the MDO Act, “the

requirement for evaluations [in the SVP Act] is not one affecting the disposition of

the merits; rather, it is a collateral procedural condition plainly designed to ensure

17

that SVP proceedings are initiated only when there is a substantial factual basis for

doing so.” (People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122,

1130.) “After the petition is filed, rather than demonstrating the existence of two

evaluations, the People are required to show the more essential fact that the

alleged SVP is likely to engage in sexually violent predatory criminal behavior.”

(Ibid.; see also People v. Dean (2009) 174 Cal.App.4th 186, 203.) The same is

true here. The evaluation and certification requirement is a collateral procedural

condition designed to ensure that a prisoner is certified as an MDO only when

there is a substantial factual basis for doing so. Once the prisoner has been

certified as an MDO, however, the People are required at the hearing to prove the

more essential facts that the prisoner suffers from a severe mental disorder that is

not in remission, that the disorder caused or aggravated the enumerated offense for

which the prisoner is incarcerated, that the prisoner has been in treatment for the

disorder for at least 90 days in the preceding year, and that the disorder renders the

prisoner a substantial danger of physical harm to others.

Moreover, Harrison‟s proposed interpretation of section 2962 would raise

serious questions as to the constitutionality of the MDO scheme. Section 2962,

subdivision (d)(1) was amended by urgency legislation in 1989 to require that the

certification by a chief psychiatrist include a finding “that by reason of his or her

severe mental disorder the prisoner represents a substantial danger of harm to

others.” (Stats. 1989, ch. 228, § 1, pp. 1253.) The amendment was in response to

a ruling by the Court of Appeal that the MDO Act violated the equal protection

clauses of the federal and state Constitutions by failing to require proof of present

dangerousness. (People v. Superior Court (Myers) (1996) 50 Cal.App.4th 826,

830, citing People v. Gibson (1988) 204 Cal.App.3d 1425.) Although the 1989

amendment supplied the only mention of the requirement of present dangerousness

in section 2962, the legislative history nonetheless explicitly stated that the

18

amendment “corrects that constitutional defect by requiring a finding, by proof

beyond a reasonable doubt, that by reason of his or her severe mental disorder the

patient represents a substantial danger of physical harm to others.” (Off. of Sen.

Floor Analysis, 3d reading analysis of Sen. Bill No. 1625 (1989-1990 Reg. Sess.)

as amended June 26, 1989, p. 2; Assem. Com. on Public Safety, Analysis of Sen.

Bill No. 1625 (1989-1990 Reg. Sess.) as amended May 17, 1989, p. 2.)

Because our interpretation of the MDO Act ensures, as the Legislature

intended, that the criteria used by the mental health professionals in determining

whether the prisoner qualifies as an MDO matches the criteria used at the hearing

to review that determination (Bd. of Prison Terms, Analysis of Sen. Bill No. 425

(1987-1988 Reg. Sess.) as amended May 4, 1987, p. 3.), the statute thus requires

both the mental health professionals and the reviewing court to consider whether

“by reason of his or her severe mental disorder the prisoner represents a

substantial danger of harm to others.” (§ 2962, subd. (d).) Under Harrison‟s

interpretation, however, subdivision (d) of section 2962 merely “puts in issue the

fact that the evaluations and certifications occurred and does not put in issue the

truth of the matters certified.” Under his proposed reading of the statute,

therefore, the People would need to prove to the trier of fact at the superior court

hearing only that a chief psychiatrist certified the prisoner as representing a

substantial danger of harm to others by virtue of the mental disorder as of the date

of the Board hearing, not that the prisoner actually did represent a substantial

danger of harm to others by virtue of the mental disorder as of the date of the

Board hearing. The application of this lower standard of proof of present

dangerousness for MDO‟s compared to other civil committees could raise serious

questions under the equal protection clause. (See People v. Gibson, supra, 204

Cal.App.3d at pp. 1435-1441.) “Under well-established precedent, of course, a

statute must be construed, if reasonably possible, in a manner that avoids a serious

19

constitutional question.” (People v. Engram (2010) 50 Cal.4th 1131, 1161.) For

this reason, too, Harrison‟s proposed interpretation must be rejected.

Our conclusion does not mean, as the Court of Appeal feared, that the issue

of compliance with the evaluation and certification procedure would thereby be

rendered “irrelevant” in a prisoner‟s challenge to an MDO certification. In the

view of the Court of Appeal, unless the People were forced to shoulder the burden

of proving compliance with these procedures in every MDO case to the trier of

fact beyond a reasonable doubt, “we have no way of knowing whether appellant

was evaluated by „the person in charge of [his] treatment,‟ ” “whether he was

evaluated by „a practicing psychiatrist or psychologist from the State Department

of Mental Health,‟ ” and “whether the evaluators concluded that appellant did

meet the requisite criteria.” Not so. The issue of compliance with these

procedures is a “ „procedural prerequisite[]‟ ” for classifying the prisoner as an

MDO, “much like a „valid preliminary hearing bindover‟ or a „grand jury

charge‟ ” is a “ „procedural prerequisite[] for prosecution.‟ ” (People v. Posey

(2004) 32 Cal.4th 193, 208.) As such, it is a question of law for the court, not an

issue for the trier of fact.

The Court of Appeal‟s attempt to classify the issue of compliance with the

evaluation and certification procedure as a question of fact would be “inconsistent

with contemporary treatment of other, analogous procedural issues,” such as

compliance with speedy trial and venue requirements. (People v. Simon (2001) 25

Cal.4th 1082, 1110, fn. 18; see People v. Posey, supra, 32 Cal.4th at p. 200; see

generally Evid. Code, § 310, subd. (a).) Indeed, defendant offers no reason why a

prisoner should be forced to go through a full hearing before the trier of fact to

establish a defect in the procedure by which the prisoner was classified as an

MDO when the prisoner, upon a timely objection, would be able to establish the

20

defect prior to any hearing and, in an appropriate case, obtain relief without the

need for a jury trial at all. (Cf. Posey, supra, 32 Cal.4th at p. 200.)

Where, as here, though, the prisoner did not timely object to an alleged

defect in the procedures underlying the evaluation process, the objection is

forfeited. “ „ “ „No procedural principle is more familiar to this Court than that a

constitutional right,‟ or a right of any other sort, „may be forfeited in criminal as

well as civil cases by the failure to make timely assertion of the right before a

tribunal having jurisdiction to determine it.‟ ” ‟ ” (People v. Simon, supra, 25

Cal.4th at p. 1103.) The “ „procedural prerequisite[]‟ ” of venue, for example, is

not rendered irrelevant simply because the People do not have the burden to

establish venue beyond a reasonable doubt in every criminal case. (People v.

Posey, supra, 32 Cal.4th at p. 208.) Venue, like the MDO evaluation procedures,

“does not involve a matter of a court‟s fundamental authority or subject matter

jurisdiction over a proceeding,” but is a procedural right afforded the accused.

(People v. Simon, supra, 25 Cal.4th at p. 1103.) Absent a timely objection, the

People have no obligation to present evidence establishing venue in a criminal

prosecution. Although a civil commitment proceeding is not criminal in nature, it

does afford the prisoner many of the protections of a criminal defendant: the

prisoner has the right to an attorney and a jury trial; the hearing is to be conducted

within a fixed period of time unless time is waived or good cause is shown; the

burden of proof is on the People; the standard of proof is beyond a reasonable

doubt; and the verdict must be unanimous. (Pen. Code, § 2966, subd. (b).) In

addition, the prisoner is provided a copy of the certification, and “all supporting

documentation leading to the conclusion shall be attached.” (Cal. Code Regs., tit.

15, § 2572, subd. (b); see also Pen. Code, § 2966, subd. (b).) There is thus no

unfairness in requiring a prisoner who claims noncompliance with one or more of

the evaluation procedures to make a timely objection on that basis and thereby

21

alert the People to the need to offer evidence of compliance. This approach will

allow the court to resolve that objection prior to the hearing and, if meritorious,

order an appropriate remedy. (Cf. People v. Simon, supra, 25 Cal.4th at p. 1108.)

For the foregoing reasons, we conclude that the “criteria” of section 2962

refer to the substantive criteria used by mental health professionals to certify a

prisoner as an MDO to the Board—namely, whether the prisoner has a severe

mental disorder, whether the disorder is not in remission or cannot be kept in

remission without treatment, whether the disorder was a cause of or an

aggravating factor in the commission of a crime listed in the statute for which the

prisoner is incarcerated, whether the prisoner has been in treatment for the

disorder for at least 90 days within the year prior to release on parole, and whether

by reason of the disorder the prisoner represents a substantial danger of physical

harm to others. (See CALCRIM No. 3456.) Section 2962 does not require that

compliance with the evaluation and certification procedures be proved to the trier

of fact; instead, the issue of compliance with those procedures is a question of law

for the court.2

2 To the extent language in Lopez v. Superior Court, supra, 50 Cal.4th at

page 1059, footnote 3, People v. White (1995) 32 Cal.App.4th 638, 641-642, and

People v. Miller (1994) 25 Cal.App.4th 913, 919-920, suggests or assumes that the

evaluation and certification procedure is part of the criteria that must be proved to

the trier of fact in reviewing whether a prisoner qualifies as an MDO, it is

disapproved.

22

DISPOSITION

The judgment of the Court of Appeal is reversed and the cause is remanded

to the Court of Appeal to determine, in the first instance, whether Harrison‟s

remaining claims are moot.

BAXTER, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

KENNARD, J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

LIU, J.

23

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Harrison

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 202 Cal.App.4th 340

Rehearing Granted

__________________________________________________________________________________

Opinion No. S199830

Date Filed: October 31, 2013

__________________________________________________________________________________

Court: Superior

County: San Bernardino

Judge: Katrina West

__________________________________________________________________________________

Counsel:

Ronald R. Boyer, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R Gillette, Chief Assistant Attorney General, Gary W. Schons

and Julie L. Garland, Assistant Attorneys General, Lilia E. Garcia, Steven T. Oetting and Quisteen S.

Shum, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Ronald R. Boyer

1563 Solano Ave., #246

Berkeley, CA 94707

(510) 524-8376

Quisteen S. Shum

Deputy Attorney General

110 West A Street, Suite 1100

San Diego, CA 92101

(619) 645-2613