THE PEOPLE, Plaintiff and Respondent, v. KELVIN HARRISON, Defendant and Appellant.
No. S199830
Supreme Court of California
Oct. 31, 2013.
1211
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.
OPINION
BAXTER, J.—
What constitute “the criteria in section 2962“? The Court of Appeal concluded that the “criteria” to be considered by the trier of fact at the superior 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
We conclude the Court of Appeal erred. The evaluation and certification provisions of
BACKGROUND
Kelvin Harrison was convicted of battery with serious bodily injury (
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
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 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 he 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
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
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
Challenges to an MDO certification are governed by
What, then, are the criteria of
Some subdivisions of
Some of the subdivisions of
“(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 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
The People, on the other hand, reason that
“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
What “the following criteria” means in the context of
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) through (5), which closely resembled present section 2962, subdivisions (a) through (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, 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
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 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;
Longtime administrative construction of
“(a) The prisoner has a severe mental disorder.
“(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 Regs., tit. 15, § 2571 ; seeid., § 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 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, which is tasked with conducting “a hearing if so requested, for the purpose of proving that the prisoner meets the criteria in
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 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 fact finder 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;
Moreover, Harrison‘s proposed interpretation of
Because our interpretation of the MDO Act ensures, as the Legislature intended, that the criteria used by the mental health professionals in
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, “[w]e 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. (
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 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 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 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 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. Cantil-Sakauye, C. J., Kennard, J., Werdegar, J., Chin, J., Corrigan, J., and Liu, J., concurred.