Opinion
E054166 Super.Ct.No. FELSS1004719
06-21-2012
THE PEOPLE, Plaintiff and Respondent, v. MELINDA MARSHALL, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meredith White and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Katrina West, Judge. Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meredith White and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Melinda Marshall filed a petition under Penal Code section 2966, subdivision (b), challenging the Board of Prison Terms' certification that she met all six criteria for commitment for treatment as a condition of parole under the Mentally Disordered Offender Act (MDO Act, § 2960 et seq.). The trial court confirmed that the MDO criteria had been met. On appeal, defendant contends that there was insufficient evidence to sustain the MDO commitment, since her underlying conviction was for attempted kidnapping (§§ 664/207), which is not an enumerated, qualifying offense under section 2962. We affirm.
All further statutory references will be to the Penal Code, unless otherwise noted.
Section 2966, subdivision (b), provides that "[a] prisoner who disagrees with the determination of the Board of Prison Terms that he or she meets the criteria of Section 2962, may file . . . a petition for a hearing on whether he or she, as of the date of the Board of Prison terms hearing, met the criteria of Section 2962."
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the probation report.
Defendant was at an amusement park in Santa Monica. She went to the "ring toss" game counter. An eight-year-old girl (the victim) was standing at the counter with her mother. Defendant approached the victim, grabbed her by the wrist, and pulled her approximately 10 to 15 feet away from the counter. The victim looked at her mother and indicated that she was in distress. The victim's mother approached defendant and said, "What do you think you are doing?" Defendant stated, "You stole her from me yesterday, bitch. This is my daughter, don't you ever try that again." Defendant began to scream obscenities at the victim's mother. The victim's mother pulled her daughter away from defendant. The victim hid behind her mother, while her mother argued with defendant. The victim's aunt notified park security.
Police officers interviewed defendant, and she said that she was an undercover law enforcement officer, and that she had placed the victim in her custody for her protection. Defendant also said that because of her undercover status, she was "forbidden to carry identification," and she refused to identify herself or give the officers any information. The officers transported defendant to the hospital for medical clearance. At the hospital, defendant became verbally abusive to the officers and hospital staff. When asked if she needed anything, she said, "I need you to die." After leaving the hospital, an officer put her in the back seat of the vehicle and put her seat belt on. She continued to be verbally abusive and spit in the officer's face.
Defendant was charged with one count of attempted kidnapping (§§ 664/207, subd. (a)) and battery on a peace officer. It was also alleged that she had a prior prison conviction allegation within the meaning of section 667, subdivision (a). Defendant admitted the attempted kidnapping and the prior prison allegation. She was sentenced to a total of 10 years in prison.
The record does not contain a copy of a complaint or information, and does not otherwise indicate the Penal Code section under which she was charged for battery.
ANALYSIS
The Court Properly Found That Defendant Met the MDO Criteria
Defendant argues there was insufficient evidence to sustain her MDO commitment, since her underlying conviction was for attempted kidnapping, which is not an enumerated offense in section 2962, subdivision (e). She further contends that the court made no express or implied findings that the underlying offense involved the use of force, or the threat of the use of force. (§ 2962, subd. (e)(2)(P) & (e)(2)(Q).) The People do not dispute that attempted kidnapping is not an enumerated offense, but argue that the court implicitly found that defendant's offense qualified under section 2962, subdivision (e)(2)(P) and (e)(2)(Q). We conclude that the evidence supported a finding that the underlying offense qualified under section 2962, subdivision (e)(2)(P)
Defendant argues, and we agree, that the evidence did not support a finding under section 2962, subdivision (e)(2)(Q), which states that a qualifying offense is one 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."
A. Relevant Law
"In order to qualify an MDO for commitment, the trial court must make a finding that the prisoner meets six statutory criteria. [Citation.] Among them, the court must determine whether the prisoner's severe mental disorder was one of the causes or an aggravating factor in the commission of the crime for which he was sentenced to prison. [Citation.] The statute enumerates the crimes that qualify a prisoner for MDO treatment [citation] and contains a 'catch all' provision stating that a qualifying offense may include '[a] crime not enumerated in subparagraphs (A) to (O), inclusive, in which the prisoner used force or violence, or caused serious bodily injury . . . ." [Citation.]" (People v. Green (2006) 142 Cal.App.4th 907, 911; § 2962, subds. (b) & (e)(2)(P).)
The six criteria under section 2962 include that "[t]he prisoner must (1) have 'a severe mental disorder,' (2) 'that is not in remission or cannot be kept in remission without treatment,' (3) '[t]he severe mental disorder [must have been] one of the causes of or ... an aggravating factor in the commission of a crime for which the prisoner was sentenced to prison,' (4) '[t]he prisoner [must have] been in treatment for the severe mental disorder for 90 days or more within the year prior to the prisoner's parole or release,' (5) there must be an evaluation by enumerated mental health professionals that the prisoner satisfies the first three factors, and that the prisoner's mental disorder "represents a substantial danger of physical harm to others," and (6) the prisoner's conviction must be for a crime enumerated in subdivision (e)." (Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1059, fn 3.)
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B. Hearing on the Section 2966 Petition
A court trial on the section 2966, subdivision (b) petition was held on June 30, 2011. The parties stipulated that Dr. Gene Berg was an expert witness in the area of forensic psychology, with expertise regarding the MDO criteria. Dr. Berg conducted an evaluation of defendant on October 12, 2010. Prior to interviewing her, Dr. Berg reviewed defendant's mental health treatment history, medical records, and prison records. Defendant had received mental health treatment for 90 days during the year prior to his interview.
Regarding his interview with her, Dr. Berg noted that defendant was "marginally unkept [sic] in appearance," there was a "somewhat peculiar bizarre quality on [sic] the way she presented herself," and she "was very fast paced and pressured in her speech." He further described her as grandiose, incoherent at times, "very loose and tangential," and paranoid. He also observed that she was "very delusional," noting that she insisted that, while she was in prison, she was a model and was working undercover. Defendant denied having a mental illness and said she did not require treatment. In Dr. Berg's opinion, a major mental disorder was an aggravating factor or cause in the attempted kidnapping. He opined that she was suffering from paranoid schizophrenia. Dr. Berg testified that if defendant lived in an unstructured situation, she would "readily decompensate," and that she "really would not be able to function at all in the outside." He also opined that there was "a high degree of potential for her acting out and being a danger to people."
Based on the evidence presented, the court found that the People had demonstrated beyond a reasonable doubt that defendant met the MDO criteria. Specifically, the court stated that the People had proven defendant "was convicted by the requisite crime as required under Penal Code Section 2962, et seq.; that she [had] a severe mental disorder; that the severe mental disorder [was] one of the causes of the crime for which she was sentenced to prison or was an aggravating factor in the commission of the crime; [and] that she [had] been treated for the severe mental disorder in a state or federal prison, a county jail, or a state hospital for 90 days or more within the year before her parole release date." The court further found that the mental disorder was not in remission or could not be kept in remission without treatment, and that, because of her mental disorder, she represented a substantial danger of physical harm to others.
C. The Court Implicitly Found That Defendant's Crime Was a Qualifying Offense
"In considering the sufficiency of the evidence to support MDO findings, an appellate court must determine whether, on the whole record, a rational trier of fact could have found that defendant is an MDO beyond a reasonable doubt, considering all the evidence in the light which is most favorable to the People, and drawing all inferences the trier could reasonably have made to support the finding. [Citation.] '"'Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the [finding] is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. . . .' [Citation.]"' [Citations.]" (People v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083 [Fourth Dist., Div. Two] (Clark).)
The court here explicitly stated that defendant "was convicted [of a] requisite crime as required under Penal Code section 2962, et seq." It is undisputed that attempted kidnapping is not listed as a qualifying offense in section 2962, subdivision (e). Therefore, we infer that the court made its finding under section 2962, subdivision (e)(2)(P), as the evidence supports such finding.
Section 2962, subdivisions (b) and (e)(2)(P), provide that to be adjudged an MDO, a defendant must have used force or violence in the underlying offense, and a severe mental disorder must have been a cause of or aggravating factor in the crime. (See Clark, supra, 82 Cal.App.4th at p. 1082.) Thus, we turn to the question of whether defendant used force or violence in the underlying offense, within the meaning of section 2962, subdivision (e)(2)(P). In doing so, we first note that "the California Supreme Court held that the concept of 'force,' as used in section 2962, subdivision (e)(2)(P), has an ordinary meaning, which requires no further definition for its adjudication. [Citation.]" (Clark, at p. 1083.)
In People v. Pretzer (1992) 9 Cal.App.4th 1078 (Pretzer), the defendant entered a cat hospital, pretending to be armed (with a plastic razor in his pocket), and ordered employees to go to a back room and give him some drugs. He pled guilty to false imprisonment. (Id. at pp. 1081-1082.) The trial court found that the defendant satisfied the criteria of section 2962, including the requirement that the crime for which he was convicted was one involving "'force or violence, or caused serious bodily injury as defined in paragraph (5) of subdivision (f) of section 243.'" (Pretzer, at p. 1082; see also, § 2962, subd. (e)(2)(P).) On appeal, the defendant argued that his offense did not satisfy the "force or violence" requirement of section 2962, subdivision (e), since his offense involved a threat of harm rather than application of physical power. (Pretzer, at p. 1082.) The court found that the Legislature intended "'force' to have a broad meaning and to encompass such circumstances as these." (Id. at p. 1083.) The court stated that, even though the defendant may not have directly applied physical power against the employees, "his behavior in pretending to be armed posed a danger to them." (Ibid.) The court added that his acts "could have invited resistance or escape with possible resulting injury" to others. (Ibid.)
In the instant case, the undisputed evidence established that defendant used actual force in the attempted kidnapping. Defendant pulled the victim by her wrist approximately 10 to 15 feet away from the victim's mother. The evidence shows that the victim looked at her mother and indicated she was in distress. When the victim's mother confronted defendant, defendant screamed obscenities at her. The victim was clearly afraid of defendant, as she hid behind her mother, after her mother took her back. On this record, it is clear that force was necessarily involved in defendant taking the victim, against her will. Furthermore, defendant's acts "could have invited resistance or escape with possible resulting injury" to the victim or her mother. (Pretzer, supra, 9 Cal.App.4th at p. 1083.)
Viewing the evidence in the light most favorable to the judgment, as we must, we conclude that a reasonable trier of fact could find beyond a reasonable doubt that the commitment offense met the section 2962, subdivision (e)(2)(P), criterion involving the use of force. The evidence that defendant pulled the victim away from her mother, against her will, was sufficient evidence of the use of force required under the MDO law to establish defendant's need for treatment as an MDO.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.