People v. Miller

Marlon Miller appeals from the trial court’s finding that he is a mentally disordered offender. (MDO, see Pen. Code, § 2960 et seq.) He contends: “I. Doctor Weber’s reference to the probation report in concluding appellant’s commitment offense involved force or violence violated the double hearsay rule of Evidence Code section 1201. II. There is no substantial evidence of due certification under Penal Code section 2962, subd. (d)(1) and the judgment must be therefore be reversed. III. Failure to object to reliance on the multiple hearsay probation report does not waive the issue on appeal. IV. Defense counsel failed to act with reasonable competence by failing to proffer a multiple hearsay objection to the probation report.”

Doctor Robert Weber, a clinical psychologist at Atascadero State Hospital, testified that appellant suffered from schizophrenia, with episodes of paranoia and uncontrolled anger. Doctor Weber was on the “interdisciplinary treatment team” for ward 18 where appellant was a patient. He relied upon the 1988 probation report and the reports of other mental health experts in concluding that appellant met each and every criterion or element of an MDO…