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Name: People v. Stevens
Case #: B241356
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 02/27/2013
Subsequent History: Review granted 6/12/2013: S209643

In a Mentally Disordered Offender (MDO) proceeding, a qualified mental health expert can rely on the probation report in forming his opinion that appellant is an MDO. Appellant was charged with petty theft with a prior conviction following a shoplift incident where he threatened to kill loss prevention officers and tried to push a shopping cart at one of them. At an MDO proceeding, a clinical psychologist, relying on a probation report discussing the offense, rendered an opinion that appellant was an MDO (Pen. Code, § 2960 et seq.). Affirmed. Agreeing with People v. Miller (1994) 25 Cal.App.4th 913, but disagreeing with dicta in People v. Baker (2012) 204 Cal.App.4th 1234, 1246, fn.9, the court observed that the basic inquiry of the MDO proceeding centers on the subject’s mental state and his potential threat to the public–ultimate issues appropriate for a psychologist or psychiatrist to render an opinion. Under Evidence Code section 801, subdivision (b), an expert need not have personal knowledge of the matter as a prerequisite to testifying about it. The only prerequisite is that the matter considered “is of a type that reasonably may be relied upon by an expert . . . .” Although hearsay, a probation report discussing whether the instant offense involved force or violence, one of the factors in determining whether appellant is an MDO, can reasonably be relied upon by an expert in formulating his opinion that appellant is an MDO. Appellant is protected from any misinformation in the report by his due process right to challenge information in the probation report. Also, the judge at the hearing has considerable discretion in determining the admissibility of expert opinion evidence and will exclude improper evidence.