Tate

Kenny Wayne Tate appeals from a trial court finding that he is a mentally disordered offender (MDO) within the meaning of Penal Code section 2962. Appellant concedes the order is supported by substantial evidence but argues that the trial court should have ordered his discharge pursuant to section 2968 because of an improvement in his mental condition. We affirm and hold that section 2968 may not be raised as an affirmative defense at a section 2966 proceeding.

In 1992 appellant pled guilty to second degree robbery and was sentenced to state prison for two years. His parole release date was March 20, 1993.

On November 10, 1992, Doctor Moss, a staff psychiatrist at Atascadero State Hospital, examined appellant and determined that he suffered from a severe mental disorder. Appellant was transferred to Atascadero State Hospital where Doctor Audrey Mertz diagnosed and treated him for a hypomanic, bipolar disorder.

On January 27, 1993, the Board of Prison Terms (BPT) found that appellant met the MDO criteria and ordered him committed to Atascadero State Hospital for treatment. (§§ 2962, 2966, subd. (a).) Appellant filed a petition for trial of the issue and waived his right…