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

1
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

2
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

4
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).)

5
 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)

6
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

7
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

8
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

10
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.

13
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.

14
 “(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