Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo, No. F440281, Hugh Mullin, III, 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, Keith H. Borjon, Supervising Deputy Attorney General, Sharlene A. Honnaka, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Gabriel Gundler appeals from an order of the trial court committing him to the Department of Mental Health (DMH) for treatment as a mentally disordered offender (MDO). (Pen. Code, § 2960 et seq.) He argues that his commitment offense did not constitute a crime of force or violence within the meaning of the statute. We affirm.
All further statutory references are to the Penal Code unless otherwise stated.
FACTS
Appellant threw a rock at the window of a slow-moving train, and began walking away. The engineer stopped the train and a train employee called to appellant to stop. He turned around and took a fighting stance. He swung at a train employee, but did not hit him. Appellant was under the influence of methamphetamine at the time he committed the offense. After his arrest, appellant stated that the engineer stuck a handgun out the window, so he threw a rock at the train. He also said that the police had hidden the gun. Appellant was sentenced to two years in state prison following his conviction for throwing a rock at a train. (§ 219.2.)
Section 291.2 criminalizes the conduct of "[e]very person who willfully throws, hurls, or projects a stone or other hard substance, or shoots a missile, at a train, locomotive, street railway car, caboose, cable railway car, street railway car, or bus or at a steam vessel or watercraft used for carrying passengers or freight on any of the waters within or bordering on this state...."
It was stipulated that a hearing before the Board of Parole Hearings (Board) was held on November 12, 2009. The Board certified that appellant met the MDO criteria and he was admitted to Atascadero State Hospital (ASH). Appellant filed a section 2966, subdivision (b) petition challenging his certification. He waived his right to a jury determination and his MDO status was confirmed following a court trial. The court found he met the statutory criteria and ordered him committed to the DMH.
At the time of sentencing for the commitment offense, appellant was also sentenced for committing the non-controlling offenses of two counts of second degree burglary (§ 459) and one count of petty theft with a prior. (§ 666.) He had been paroled, but was returned to prison after violating parole.
Testimony of Dr. Joe Debruin
Dr. Debruin is a forensic psychologist at Atascadero State Hospital (ASH) who testified that appellant met the statutory criteria. He diagnosed appellant as suffering from paranoid schizophrenia. His diagnosis was based upon an interview with appellant, consultation with his treating psychiatrist at ASH, and a review of his medical records and probation report. Dr. Debruin testified that appellant believes that he has 100 wives, is king of Orion, and that NASA and other governmental agencies will not assist him in returning to a particular planet. He also believes he is part of an unregistered Indian tribe that has numerous silver mines. Appellant believes he is wanted by the FBI because of the mines. Dr. Debruin described appellant as having auditory and visual hallucinations, mood lability, inappropriate affect and that he responds to internal stimuli. He exhibits pressured speech, racing thoughts and has problems with hygiene.
In reciting the facts of the commitment offense, Dr. Debruin initially testified that appellant had punched a train employee. On cross-examination he reviewed the probation report and corrected his testimony, stating that appellant had only swung at the employee. He also testified that appellant's delusional statements concerning the king of Orion and his home planet were made following a crime unrelated to the commitment offense.
Dr. Debruin testified that appellant had been physically violent prior to the Board's hearing date. On one occasion he became so overtly aggressive with staff and peers that a "red-light alarm" was pulled. On a different occasion, he began yelling at a peer and violently pushed past staff attempting to separate him from another person. He had to be placed in full bed restraints. Appellant has a history of drug use and a criminal record.
Report of Dr. Elaine Tenney
Also submitted into evidence were the reports of Dr. Elaine Tenneyand Dr. Christopher Simonet. Dr. Tenney interviewed appellant and diagnosed him as suffering from a psychotic disorder, NOS, and polysubstance abuse. His symptoms included delusions, mood instability, poor impulse control, aggressive and assaultive behaviors, paranoia and poor insight. During the interview, he was loud, tangential and delusional. He spoke at length about his tribe and the "Indian people." When asked about his plans if paroled, appellant said he would meet with his tribe and the "auto company." He denied that he would need medications. It was Dr. Tenney's opinion that appellant met the statutory criteria to qualify as an MDO.
Report of Dr. Christopher Simonet
Dr. Christopher Simonet concluded that appellant did not qualify as an MDO. He diagnosed appellant as suffering from a psychotic disorder "along the schizophrenic spectrum...." During their interview, appellant made many delusional claims and repeatedly spoke about his Indian tribe and being contacted by them. He also claimed he was a high-ranking official with Volkswagen and had multiple wives. It was the opinion of Dr. Simonet, however, that the controlling offense did not involve the use of force or violence, thus appellant did not meet the statutory criteria.
After hearing testimony and considering the reports, the trial court determined that appellant's crime involved the use of force because it was directed against a human being, rather than property alone.
DISCUSSION
To qualify as an MDO, the prisoner must meet certain statutory criteria, including the commission of an enumerated crime. (§ 2962, subd. (e)(2).) An offense not enumerated in this section may nevertheless constitute a qualifying offense if "the prisoner used force or violence, or caused serious bodily injury...." (Id., subd. (e)(2)(P).) In reviewing the sufficiency of evidence to support an order made in MDO proceedings, we review the entire record to determine if reasonable and credible evidence supports the decision of the trier of fact. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083.) We view the evidence and draw all reasonable inferences in favor of the order. (Ibid.)
Appellant argues that there was insufficient evidence that his was a crime of force or violence, relying on our decision in People v. Green (2006) 142 Cal.App.4th 907. There, we held that the application of force against an inanimate object does not constitute a qualifying offense under the MDO statute. (Id. at p. 913.) In People v. Green the defendant was arrested and placed inside a police car, where he kicked out the rear window. He was convicted of felony vandalism. (§ 594, subd. (a).) We concluded that his crime was not a qualifying offense because it constituted the application of force against property. (People v. Green, supra, at p. 912.) Appellant argues that People v. Green is controlling because a train is property, thus his offense does not fall within the MDO statute. He also claims that section 219.2 applies only to property crimes.
We disagree. The facts before us are quite different than those in People v. Green. There, the defendant shattered a window with his feet, damaging a police car. Appellant's offense, however, was not limited to vandalism to property. He risked striking a person when he threw the rock at the train. A consequence of his offense could have been bodily injury to a human being. Section 219.2 is intended to "safeguard drivers from injury to their persons or vehicles, ... [and] distractions that could result in such injury. [Citation.]" (In re Wasif M. (2004) 119 Cal.App.4th 176, 183 [stones thrown at bus].) The purpose of the statute is to protect people who ride trains by criminalizing conduct that could pose a threat to their safety.
Appellant claims the trial court may consider only facts pertaining to charges for which he was convicted, not facts arising from charges that were dismissed. Appellant's contention apparently relates to Dr. Debruin's testimony that appellant's delusional statements were not made in connection with the commitment offense, but following an unrelated crime.
In support of his argument, appellant cites both People v. Green and our decision in People v. Kortesmaki (2007) 156 Cal.App.4th 922. In People v. Green, we stated that we could not consider an argument raised by the People because it was based upon an offense that had been dismissed. (People v. Green, supra, 142 Cal.App.4th at p. 913.) In People v. Kortesmaki, we indicated that the trial court erred in finding that a defendant qualified as an MDO based on facts arising from a dismissed offense. (People v. Kortesmaki, supra, at p. 928.) Appellant's citation to the foregoing cases is inapposite. He was charged and convicted under section 219.2, which was the basis for his commitment offense. No charges were dismissed. Moreover, Dr. Debruin's testimony concerning appellant's delusions related to his severe mental disorder. The existence of appellant's mental disorder was undisputed and is not an issue on appeal.
DISPOSITION
The judgment (order of commitment) is affirmed.
We concur: GILBERT, P.J., PERREN, J.