Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo No. F397936. Martin J. Tangeman, 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, A. Scott Hayward, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Landyn Pollard appeals from his involuntary commitment as a mentally disordered offender (MDO) under Penal Code section 2960 et seq. He contends the state failed to prove the requisite criteria for an MDO commitment because his underlying conviction of taking and driving a vehicle unlawfully did not involve force or violence and did not otherwise qualify as an MDO offense. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
On September 25, 2004, appellant's mother saw appellant walking and offered to give him a ride. Appellant asked to drive the car. She refused his request because he was "too mentally ill to drive a car." Appellant then went to a car dealer or auto mechanic shop, found a car with keys in it, entered the car, and started its engine. When an employee tried to pull him from the car, appellant "headbutted" him. Appellant drove the car away at a high speed, "into oncoming lanes in the center median, [ran] red lights and [moved] in and out of traffic." The headbutting victim had minor injuries on his forehead and chin.
On November 24, 2004, appellant pleaded guilty to unlawfully taking and driving a vehicle. (Veh. Code, § 10851, subd. (a).) The court sentenced him to state prison for two years eight months. On August 21, 2006, appellant was transferred from state prison to Atascardero State Hospital pursuant to section 2684. He was medicated involuntarily pursuant to a "Keyhea order" since sometime in July 2006. On January 9, 2007, the Board of Prison Terms certified appellant as an MDO.
A "Keyhea injunction provides a process whereby a prisoner who is subject to mental health treatment, after being administered involuntary medication for up to 72 hours, may be certified for additional involuntary medication up to 21 days if the prisoner is 'as a result of mental disorder, gravely disabled and incompetent to refuse medication for the danger to others, or danger to self.'" (In re Qawi (2004) 32 Cal.4th 1, 22, citing Keyhea v. Rushen (1986) 178 Cal.App.3d 526.)
Dr. Robert Knapp, a senior psychiatrist, treated appellant at ASH from January through early March 2007. He concluded that appellant suffered from paranoid schizophrenia. Appellant's symptoms included disorganized thinking, confusion, auditory hallucinations and disorganized behavior. As of January 9, 2007, appellant had not exhibited those symptoms, while ASH continued medicating him pursuant to the Keyhea order.
Dr. Knapp concluded that appellant's "disorder was an aggravating factor in the commission of " his September 25, 2004, crime. Appellant had then been a conservatee because of his significant disability. When authorities apprehended appellant, he was "illogical and irrational." There was "no evidence of [his] intoxication with drugs or alcohol or any other conditions" to explain any reason other than a disorder for his behavior. Dr. Knapp also concluded that the crime itself "demonstrated very poor judgment which is a symptom of his illness." Based on appellant's prior refusal to take medication, Dr. Knapp further concluded that he could not be kept in remission without treatment.
The court found that appellant constituted a substantial danger and that force or violence was involved in his unlawfully taking and driving a vehicle. The court denied appellant's petition and ordered him committed to the Department of Mental Health for treatment.
DISCUSSION
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, subdivisions (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." Although unlawful vehicle taking and driving is not an enumerated MDO offense, the trial court determined that appellant's conviction qualified because it involved force and violence.
Our task on appeal in reviewing an MDO commitment is to determine whether a rational trier of fact could have made the finding that appellant's underlying offense involved force or violence. (See 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 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. We disagree. 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, "[T]he application of force against an inanimate object does not fall within section 2962, subdivision (e)(2)(P). Kicking out a window in a police car does not constitute a qualifying offense under the MDO statute." (Id. at p. 913, italics added.) Unlike the defendant in Green, however, appellant used force and violence by headbutting a person, taking a car, which he then drove at a high speed, toward oncoming traffic in the center median, and through intersections against red traffic lights.
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.)
Appellant argues that his commitment is improper because it is based on alleged offenses for which he "was neither charged nor convicted." This argument misconstrues the section 2962, subdivision (e)(2)(P) catchall provision. The court properly considered the circumstances surrounding appellant's crime in determining whether it involved force or violence. Here appellant headbutted the employee who tried to recover the stolen car from him, then took the car and drove it at a high speed, "into oncoming lanes in the center median, [ran] red lights and [moved] in and out of traffic." This contrasts with Anzalone where the defendant used a simple, nonthreatening note and a demand for money in a robbery. (Anzaone, supra, 19 Cal.4th at p. 1078.) Considering the entire record, we conclude there is substantial evidence to support the trial court's finding that appellant's underlying crime involved force or violence. (§ 2962, subd. (e)(2)(P); People v. Clark, supra, 82 Cal.App.4th at pp. 1082-1083; People v. Miller, supra, 25 Cal.App.4th at p. 919.) That purpose is furthered by appellant's commitment. Appellant exhibited violence in his behavior and posed a danger to society.
The judgment is affirmed.
We concur: GILBERT, P.J. PERREN, J.