Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo, Super. Ct. No. F388790, Christopher G. Money, Judge.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, JUDGE.
Bradley Gorton appeals from his involuntary commitment as a mentally disordered offender (MDO) under Penal Code section 2960 et seq. He contends the evidence was insufficient to prove two of the requisite criteria for an MDO commitment because his underlying conviction of felony vandalism did not involve force or violence and did not otherwise qualify as an MDO offense; and the finding that appellant represented a substantial danger of physical harm to others was based on improper evidence. We reject both contentions and affirm.
All statutory references are to the Penal Code.
BACKGROUND
On May 21, 2005, several days before his upcoming eviction, appellant sprayed a flammable liquid (engine degreaser) on the walls, floor, water heater, and other items in his apartment. The police arrived and found wet towels located throughout the apartment, covering several items, including the pipes leading from the wall to the water heater, the wall heater, and the water heater's pilot light, while the light was on. The towels were "soaked" and they smelled like engine degreaser. Other tenants lived in the apartment complex.
No fire occurred on May 21, and the police found no matches or similar items in appellant's apartment. Water from the sink and tub had overflowed into his apartment and soaked the carpet. Another tenant's apartment was flooded as a result of a hose that appellant had placed through an apartment window. Appellant told his landlord or someone at the apartment complex to call the police because the buildings were on fire. Although the landlord ignored appellant because he had engaged in similar conduct on several prior occasions, someone shut off the gas. No fire ignited and nobody was injured as a result of the incident.
When police officers arrived at appellant's apartment, he told them that he wanted to light the building on fire because people were out to get him and he wanted to get them first. He also stated that the town was being "shaken down" by African gangs who would remove people and furniture from the premises, put them on a train, and ship them somewhere else. After his arrest, appellant kept repeating, "I'm crazy, I'm 5150. My brains are shot." He also said that the "mafia was in town."
Appellant later told a Dr. Forbes that he did not want to burn the apartment and that he wanted to go home to his mom. He said he was "using the grease because people were trying to burn" him, and he was "sealing up the apartment." He said, "I sprayed grease on the wall around the heater [and was] charged with attempted arson. I thought that people were after me." He also told the doctor: "My delusional past, first I was on S.S.I. I was the last man on earth going to explode to Armageddon. The police discovered me." The doctor concluded that appellant was "incompetent to stand trial."
Appellant pleaded guilty to felony vandalism. (§ 594, subd. (b)(1).) The court sentenced him to state prison for one year four months. On June 5, 2006, the Board of Prison Terms certified appellant as an MDO. There is no indication that appellant was physically violent while in Atascadero State Hospital (ASH) or the Department of Corrections.
Observing that vandalism can be a crime of force or violence, the court found that appellant had committed a crime of violence "even if [it was done by] putting the hose through the window." It also found that appellant's conduct was "sufficient to come within the implied threat of another by use of force [and that it was] forceful [and] he [was] a danger." The court denied appellant's petition and ordered him committed to the Department of Mental Health for treatment.
Dr. Lev Iofis treated and evaluated appellant from June 15 through July 2006, and concluded that he suffers from bipolar affective disorder, with psychotic features. His symptoms include delusions, primarily of persecution and grandiosity, hypomanic affect with pressured speech, and auditory and visual hallucinations.
DISCUSSION
Crime of Force or Violence
The MDO law applies to defendants who are serving sentences for the crimes described in section 2962, subdivision (e). (People v. Butler (1999) 74 Cal.App.4th 557, 560.) The qualifying crime must be either listed in section 2962, subdivision (e)(2)(A) through (O), or come within the catchall provisions of subdivision (e)(2)(P) or (e)(2)(Q). Subdivision (e)(2)(P) includes any crime "not enumerated . . . in which the prisoner used force or violence, or caused serious bodily injury . . . ." Subdivision (e)(2)(Q) includes a crime in which the "perpetrator expressly or impliedly threatened another with the use of force or violence likely to produce substantial physical harm in such a manner that a reasonable person would believe and expect that the force or violence would be used." Under subdivision (e)(2)(Q), "substantial physical harm shall not require proof that the threatened act was likely to cause great or serious bodily injury." (See People v. Valdez (2001) 89 Cal.App.4th 1013, 1016-1017.) Although felony vandalism under section 594 is not an enumerated MDO offense, the trial court determined that appellant's conviction qualified because it involved "the implied threat of another by use of force." Appellant argues this finding was unsupported by the evidence.
As relevant here, section 594, subdivision (a) provides: "Every person who maliciously [damages or destroys] . . . any real or personal property not his or her own . . . is guilty of vandalism," and subdivision (b)(1) provides that such vandalism is a felony where "the amount of . . . damage, or destruction is four hundred dollars ($400) or more."
Our task on appeal is to determine whether a rational trier of fact could have made the finding that appellant's vandalism involved force or violence, or the implied threat of force or violence. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082.) We consider the entire record in the light most favorable to the judgment and must affirm if there is any substantial evidence supporting the finding. (Id. at pp. 1082-1083; People v. Miller (1994) 25 Cal.App.4th 913, 919.)
Appellant relies in large part on People v. Hayes (2003) 105 Cal.App.4th 1287, 1290-1291, and our recent decision in People v. Green (2006) 142 Cal.App.4th 907, in arguing that his crime did not involve the use or threat of force or violence against persons. Respondent counters that appellant's extraordinarily dangerous conduct supports the trial court's contrary finding. We agree with respondent.
People v. Hayes, supra, 105 Cal.App.4th 1287, held that a conviction for recklessly setting a fire under section 452 could not support the defendant's commitment as an MDO because it did not involve the use of "force or violence" under subdivision (e)(2)(Q). The Hayes court concluded that the crime of recklessly starting a fire pursuant to section 452, subdivision (b) is not a qualifying offense under the MDO law's "catchall" provision because the Legislature had expressly enumerated the crimes of intentional arson and attempted arson (§§ 451, 455), both of which expressly require a showing that the defendant acted willfully and maliciously. Applying the doctrine of expressio unius est exclusio alterius, or "'the expression of one thing is the exclusion of another'" (id. at p. 1290), the court reasoned, "Given the Legislature's specific inclusion of two types of unlawfully causing or attempting to cause a fire, both of which require a showing of willfulness and malice, and the 'aggravated nature of the other crimes specified in section 2962, subdivision (e)(2)' [citation], we conclude the Legislature did not intend to include recklessly causing a fire among the offenses that qualify an offender for commitment as an MDO." (Hayes, at p. 1291.)
Hayes does not support appellant's argument that his vandalism did not involve the use of force or violence. Contrary to the defendant in Hayes, appellant is not convicted of recklessly starting a fire. Moreover, at the crime scene, appellant's statements established that his dangerous conduct was willful—he wanted to "light the building on fire" because people were after him. Later, he said that he was "the last man on earth going to explode to Armageddon." In contrast, when discovered in his room next to a burning dresser, the Hayes defendant said that the devil came into his room.
Citing Green, appellant argues that because "the application of force against an inanimate object does not fall within section 2962, subdivision (e)(2)(P)," his vandalism crime cannot support an MDO commitment order. (People v. Green, supra, 142 Cal.App.4th at p. 911.) In Green, a storeowner called the police after he found the defendant loitering outside his store. The defendant had verbally threatened a bystander during his arrest. After the police placed the defendant in the patrol car, he kicked out the car's rear window. (Id. at p. 909.) Green concluded that "the application of force against an inanimate object does not fall within section 2962, subdivision (e)(2)(P)[, and that] [k]icking out a window in a police car does not constitute a qualifying offense under the MDO statute." (Id. at p. 913.) While Green and the instant case both involve defendants who pleaded guilty to felony vandalism, as well as the dismissal of more egregious charges, appellant's vandalism is far more dangerous than that in Green. The defendant in Green verbally "threatened the life of the victim" at some time during the incident, but there was no suggestion that his vandalism posed an actual risk to the safety of any victim. (Id. at p. 910.) In contrast, appellant admitted that he wanted to set the building on fire, and his vandalism posed a threat of force or violence (fire or explosion) to other people.
In a different context, our Supreme Court recognized in People v. Monterroso (2004) 34 Cal.4th 743, 770-771, that vandalism can involve a threat of force or violence against people. The Monterroso court considered whether an act of vandalism could be considered in a death penalty case, pursuant to factor (b) of section 190.3, which allows the trier of fact to consider "'[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.'" (Monterroso, at p. 770.) The defendant vandalized a victim's van by scratching his gang's initials on it a couple of days after his arrest for insulting and assaulting her husband and marking her sidewalk with graffiti. He argued that the vandalism involved property damage which was outside the scope of factor (b). A gang expert testified that the purpose of the vandalism was to instill fear and warn the victims "not to 'mess' with the gang." (Id. at p. 771.) The Monterroso court concluded that such vandalism "unquestionably qualified as an express or implied threat to use force or violence against" the victims. (Ibid.)
Initially the MDO law did not list specific crimes as qualifying offenses but defined a qualifying offense as a "crime in which the prisoner used force or violence, or caused serious bodily injury . . . ." (Former § 2962, subd. (e), added by Stats. 1986, ch. 858, § 2.) In People v. Collins (1992) 10 Cal.App.4th 690, this court construed section 2962 and suggested the Legislature might wish to amend the definition of what qualifies as an MDO offense. In 1995, partly in response to our Collins decision, the Legislature amended section 2962 to add a list of specific offenses subject to MDO treatment, including robbery, kidnapping, and forcible rape, but it included a catchall provision that retained the original version of the statute. (Stats. 1995, ch. 761, § 1.) In People v. Anzalone (1999) 19 Cal.4th 1074, the Supreme Court considered whether an unarmed robbery, accomplished by a simple nonthreatening note and demand for money, involved the use of "force or violence" within the meaning of the catchall provision of section 2962, subdivision (e)(2)(P). The Anzalone court held that an unarmed robbery committed without the use of actual force did not fall within the subdivision (e)(2)(P) catchall provision. (Anzalone, at pp. 1080-1081.)
In 1999, the Legislature clarified the intended breadth of section 2962, subdivision (e). In response to Anzalone, the Legislature amended and expanded section 2962, to include as a qualifying offense: "A crime in which the perpetrator expressly or impliedly threatened another with the use of force or violence likely to produce substantial physical harm in such a manner that a reasonable person would believe and expect that the force or violence would be used." (§ 2962, subd. (e)(2)(Q), as amended by Stats. 1999, ch. 16, § 1; People v. Green, supra, 142 Cal.App.4th at p. 467, fn. 2; People v. Dyer (2002) 95 Cal.App.4th 448, 453-454.) As we explained in Butler, "The amendment to section 2962 was designed to prevent the release of MDO's on the sole ground that their crimes involved the threat of force rather than actual force." (People v. Butler, supra, 74 Cal.App.4th at p. 561.)
Here, considering the entire record, we conclude there is substantial evidence to support the trial court's finding that appellant's vandalism involved "the implied threat of [other persons] by use of force." (People v. Clark, supra, 82 Cal.App.4th at pp. 1082-1083; People v. Miller, supra, 25 Cal.App.4th at p. 919.) As we explained in Dyer, "The purpose underlying the MDO law is to protect the public by identifying those offenders who exhibit violence in their behavior and pose a danger to society." (People v. Dyer, supra, 95 Cal.App.4th at p. 455.) That purpose is furthered by appellant's commitment. We stress that appellant's vandalism involved more than "spray painting" his walls with flammable liquid. He also placed towels with flammable liquid on the wall heater and the hot water heater's pilot light, and stated that he wanted to light the building (which housed other tenants) on fire. Taken together, these facts support the trial court's conclusion that his vandalism involved an implied threat of force or violence to others. In fact, a "reasonable person[,] [who believed and expected] that . . . force or violence [likely to produce substantial physical harm] would be used," shut off the gas before appellant's vandalism caused a fire or explosion. (See § 2962, subd. (e)(2)(Q).)
Substantial Danger of Physical Harm to Others
Appellant argues that respondent failed to prove another statutory criterion for an MDO commitment: By reason of his severe mental disorder, he "represents a substantial danger of physical harm to others." (§ 2962, subd. (d)(1).) We disagree. While acknowledging that appellant has not been physically violent while in ASH or at the Department of Corrections, and apparently has no record of violence predating the commitment offense, Dr. Iofis testified that the charged offense was "extremely bizarre, very erratic, and very dangerous" and that it was "this close to [the] whole thing being blown up [and] there were these people . . . on [the] premises" and "they shut off the gas." He also testified that appellant presented a substantial danger of physical harm to others by reason of his severe mental disorder because he is not in remission, he lacks insight, is noncompliant with medications, and has been disruptive at ASH. Dr. Iofis explained that appellant felt that "the only thing he needs is a 12-step program to help him deal with his substance abuse," that "he can be cured by what he calls Yin and Yang," and that "he shouldn't use legalized drugs as a way of reconciling his problems." This testimony by a qualified expert supports the trial court's finding that appellant presented a substantial danger of physical harm to others. (See People v. Valdez, supra, 89 Cal.App.4th at p. 1018; People v. Clark, supra, 82 Cal.App.4th at p. 1083.)
The judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.