Metropolitan News-Enterprise


Friday, October 15, 2004


Page 3


C.A.: Treatment for Depression Did Not Make Pedophile an MDO


By KENNETH OFGANG, Staff Writer/Appellate Courts


The period of time in which an inmate was treated for a mental disorder that is in remission cannot be combined with that in which he was treated for a separate illness, which continues to affect him, in determining whether he qualifies as a mentally disordered offender, the Fourth District Court of Appeal ruled yesterday.

Div. Two affirmed a San Bernardino Superior Court judge’s ruling that Billy Sheek cannot be committed under the Mentally Disordered Offender Act, contrary to the determination of the Board of Prison Terms.

Under the act, if an offender about to be released on parole is determined by the board to suffer from a “severe mental disorder” and meets certain other criteria, her or she will be committed to a mental health facility for the first year of parole.

The inmate may, however, challenge the board’s determination in superior court and is entitled to a jury trial.

Sheek requested a trial, and through his appointed counsel challenged the board’s finding that he met the criterion that “[t]he prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to the prisoner’s parole or release.”

Judge Douglas M. Elwell granted Sheek a dismissal prior to the trial, ruling that the district attorney could not prove Sheek met the 90-day criterion. He cited the proffered testimony of the district attorney’s psychiatric expert.

Dr. Mendel Feldsher explained that Sheek suffered from two separate mental illnesses, depressive disorder and pedophilia. His depression, for which he was treated with the drug Zoloft, was in remission by the date of the Board of Prison Terms hearing, Feldsher opined, but the pedophilia—which had been diagnosed less than four months before the hearing—was not.

Zoloft, Feldsher added, has benefits in treating pedophiles. On cross-examination, however, the doctor acknowledged that Sheek had never been specifically treated for pedophilia prior to his board hearing and that his case manager had certified—more than a month after the diagnosis was made—that no treatment was necessary.

Justice Thomas Hollenhorst, writing for the Court of Appeal, said the trial judge was correct. The statute, he said, does not allow prosecutors to “to bootstrap the treatment defendant received for his depressive disorder, which was indisputably in remission...onto defendant’s [belatedly diagnosed] pedophilia.”

The justice also rejected the district attorney’s contention that the statute does not allow the judge to dispose of a case prior to trial.

While there is no specific provision authorizing pretrial dismissals of MDO cases, Hollenhorst explained, they are within the inherent discretion of the court. The exercise of such discretion in appropriate, the justice said, “when, as here, the evidence raises purely legal issues.”

Even if erroneous, Hollenhorst added, the dismissal was harmless because the district attorney could not have proven the 90-day criterion at trial.

The case is People v. Sheek, E034840.


Copyright 2004, Metropolitan News Company