Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of San Luis Obispo, Super. Ct. No. F400545, Jac A. Crawford, Judge.
Rudy Kraft, 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, Scott A. Taryle, Supervising Deputy Attorney General, Tannaz Kouhpainezhad, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Burnett Davis appeals from his involuntary commitment as a mentally disordered offender (MDO) under Penal Code section 2960 et. seq. He contends that the trial court erred in concluding that his underlying crime of cruelty to an animal rendered him eligible for commitment pursuant to section 2962, subdivision (e)(2)(P). We affirm.
All statutory references are to the Penal Code.
Facts and Procedural Background
Appellant killed a nine-month old pit bull by hanging it from a dumpster by its leash. He was convicted of cruelty to an animal under section 597, subdivision (a) and was sentenced to two years in state prison. In December of 2006, while serving his sentence, he was transferred to Atascadero State Hospital (ASH) for treatment of a mental disorder.
In March of 2007, the Board of Prison terms certified appellant as an MDO. Appellant petitioned for a hearing to determine whether he met the criteria for MDO commitment. Appellant waived his right to a jury trial. A summary of appellant's criminal history and a portion of the probation report were received without objection.
The parties stipulated to the expert qualifications of his treating psychiatrist from ASH. The psychiatrist testified that appellant suffers from a psychotic disorder, not otherwise specified, and that appellant most likely suffers from paranoid schizophrenia. The psychiatrist testified that the disorder is severe, it is not in remission and cannot be kept in remission without treatment, the disorder was a cause or aggravating factor in appellant's commission of cruelty to an animal, appellant received more than 90 days of treatment before his parole release date, and by reason of the disorder appellant represented a substantial danger of physical harm to others.
The psychiatrist testified that appellant's mental illness was well-established from the age of 19 and resulted in at least four other hospitalizations in the intervening seven years. He suffers from auditory and visual hallucinations and delusions. As a young man, appellant believed someone was trying to kill him. Appellant has attempted suicide.
Appellant told an ASH evaluator that he killed the dog because voices were telling him to. After the initial evaluation at ASH, appellant continued to report that he was hearing voices and seeing things. Appellant had two prior misdemeanor convictions for battery and one for trespass. The animal cruelty conviction was his first felony conviction. Appellant had at least seven behavior notes for various conflicts with other patients and staff. The psychiatrist was not aware of appellant physically hurting another person or threatening to hurt anyone.
Appellant testified that he had a mental disorder in the past, but did not anymore. He said that he was first diagnosed with a mental disorder when he was 19 when he thought someone was going to kill him. He testified that he had stopped hearing voices about five or six month before the hearing, and that he was taking his medications. He said the medications had no effect; the voices stopped before he went to ASH.
Appellant denied that voices told him to kill the dog. He said that he hung the dog because it was vicious, he was afraid it would hurt someone, and he could not afford to pay an $80 fee to have it put down by the pound. He testified that he got the dog for his girlfriend's son when the dog was three months old. He trained the dog, but it became vicious when the boy played with it too much. By the time it was nine months old it was threatening children. It followed appellant when he was looking for work, so he hung it from a dumpster with by its leash. He "felt bad afterwards because [he] thought it was a being, a being, a thing, a living individual."
Appellant testified that he has never hurt anyone. Some of the behavioral notes "were lies." Others did not involve any physical fight. He testified that none of his convictions were for hurting anyone, and that he "kicked down a door one time, but that's it."
The prosecutor asked appellant "Where do you think [the ASH evaluator] came up with the idea that you killed the dog because you were hearing voices?" Appellant responded, "Well, I think I told him that, but I don't remember. I was just trying to get him out of my way. I had seen five or six psychologists, and I was tired of talking to him, so I probably told him anything I wanted just to get him out of my face."
Discussion
Appellant contends that his conviction for animal cruelty did not render him eligible for MDO commitment. He first asks us to reverse our decision in People v. Dyer (2002) 95 Cal.App.4th 448, in which we held that a crime of force or violence committed against an animal renders a prisoner eligible for MDO commitment under section 2962, subdivision (e)(2)(P). We decline. Appellant next contends that Dyer permits, but does not mandate, a determination that a particular act of animal cruelty was committed with force or violence. We agree, but affirm because substantial (and un-contradicted) evidence supports the trial court's determination in this case that appellant's act of animal cruelty was committed with force or violence.
The MDO statutes apply only to defendants who are serving prison sentences for crimes identified in section 2962, subdivision (e). That subdivision lists several specific crimes, and additionally provides that "[a] crime not unemuerated . . . in which the prisoner used force or violence . . ." is a qualifying offense. (Id., subd. (e)(2)(P).) Animal cruelty is not an enumerated MDO offense. It is a qualifying offense under subdivision (e)(2)(P) when force or violence is used. (People v. Dyer, supra, 95 Cal.App.4th at pp. 452, 456.) A crime of force or violence against inanimate objects is not a qualifying offense under subdivision (e)(2)(P). (People v. Green (2006) 142 Cal.App.4th 907.)
The trial court determined that appellant's conviction for animal cruelty was a crime of force or violence that rendered him eligible for MDO commitment (§ 2962, subd. (e)(P)(2)), and he met all the other criteria for commitment. Our role is to determine whether a rational trier of fact could have found that defendant is an MDO beyond a reasonable doubt, considering all of the evidence in the light most favorable to the judgment, and drawing all inferences the trier of fact could reasonably have made to support the finding. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082.) With respect to the determination that appellant's conviction for animal cruelty was a qualifying offense, we "determine whether a rational trier of fact could have made the finding that appellant used force or violence during the commission of the [offense]." (People v. Valdez (2001) 89 Cal.App.4th 1013, 1016.)
Substantial evidence supported the trial court's determination that appellant committed a qualifying crime of force or violence. Regardless of appellant's motivation for killing the dog, undisputed evidence established that he forcibly hung the dog from the dumpster in order to kill it. As Davis testified, "I hung it by its own leash that I bought it." Force or violence was necessarily involved.
In Dyer, we affirmed the MDO commitment of a prisoner who was convicted of animal cruelty after slashing the throat of a dog in preparation to eat it. (§ 597, subd. (a).) We rejected the prisoner's contention that only offenses against humans qualify for MDO commitment.
In this case, the trial court initially expressed concern that animal cruelty may not qualify for MDO commitment because it is not a crime against humans. After reviewing Dyer, the trial court stated "[It] is a case right on point. I'm going to have to find that the 597 is – 597 [subdivision] (a) qualifies under the [MDO] law. And with respect to the other criteria, I find that the defendant meets the criteria."
Appellant contends that the trial court erroneously believed that it was bound by our decision in Dyer to determine that the animal cruelty was a qualifying offense as a matter of law, whether or not there was evidence of force or violence. The court did not err. The trial court correctly observed that it was bound by Dyer to draw the legal conclusion that section 2962, subdivision (e)(2)(P) applies to crimes against animals in which a prisoner used force or violence. The trial court remained free to determine the factual question whether force or violence was used in this particular instance of animal cruelty, based upon the evidence presented. (People v. Valdez, supra, 89 Cal.App.4th at p. 1016 [determination whether a crime involves force or violence for purposes of section 2962, subd. (e)(2)(P) is made by the trier of fact and reviewed for substantial evidence].) However, the only evidence presented in this case established that the crime was committed with force or violence.
The trial court found that each of the essential criteria for the MDO commitment of appellant were met. In doing so, the court impliedly rejected appellant's testimony that he made a rational decision to kill the dog in order to protect others. It is the exclusive province of the trier of fact to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. (People v. Clark, supra, 82 Cal.App.4th at p. 1083.) We accord due deference to the trial court's determination, which was based on substantial evidence that each of the MDO criteria were met.
The judgment is affirmed.
I concur: GILBERT, P.J., PERREN, J. – Dissenting
For the reasons I expressed in People v. Dyer (2002) 95 Cal.App.4th 448, 457, I respectfully dissent.