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People v. Dunn

California Court of Appeals, Second District, Sixth Division
Mar 24, 2008
No. B202866 (Cal. Ct. App. Mar. 24, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. CLIFFORD DUNN, Defendant and Appellant. B202866 California Court of Appeal, Second District, Sixth Division March 24, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Superior Court County of San Luis ObispoSuper. Ct. No. F405054

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, Steven D. Matthews, Paul M. Roadarmel Jr., Supervising Deputy Attorneys General, for Plaintiff and Respondent.

COFFEE, J.

Appellant Clifford Dunn was convicted of arson of property. (Pen. Code, § 451, subd. (d)) and sentenced to state prison. After serving his sentence, the Board of Parole Hearings (BPH) determined that he met the criteria for treatment as a mentally disordered offender (MDO) under section 2962. The BPH recommended that he be confined to Atascadero State Hospital (ASH) as a condition of parole.

All further statutory references are to the Penal Code.

Appellant filed a petition requesting that the trial court overturn the determination of the BPH. (§ 2966, subd. (b).) Following a court trial, he was found to have met the statutory criteria to be certified as an MDO, and the trial court ordered him committed to ASH. Appellant argues that his crime is not a qualifying offense under the MDO statute and challenges the sufficiency of the evidence supporting the trial court's finding that he posed a substantial danger of physical harm to others. We affirm.

FACTS

Dr. Brandy Mathews is a forensic psychologist at ASH. Relying on a probation report, she testified at the MDO trial to the facts of the commitment offense. Appellant was digging in a trash can at a gas station. A station attendant approached and asked him to leave. Appellant lit a piece of paper on fire, threw it in the trash can and left the scene. The trash can was burning when the police arrived. The can was partially melted, but there was no other damage.

Dr. Mathews testified that appellant met the statutory criteria. He suffers from severe bipolar disorder with psychotic features. Appellant exhibits disorganized thought processes, incoherent speech, paranoia, hallucinations and grandiose delusions. He has auditory hallucinations and has been observed responding to internal stimuli. His psychiatric history dates back to 1976 and he has been hospitalized on 14 separate occasions.

The trial court found that appellant "meets the criteria based upon that issue, that he posed substantial danger [of] harm to others given [that] the arson occurred at a gas station."

DISCUSSION

The MDO statute enumerates certain crimes that qualify a prisoner for treatment as an MDO. Appellant does not challenge the trial court's finding that he met the statutory criteria. (§ 2962, subds. (a)-(d)(1).) He concedes that he currently represents a substantial danger of physical harm to others by virtue of his severe mental disorder. (§ Id., subd. (d)(1).) His argument on appeal is that his arson conviction is not a qualifying offense under the MDO statute.

Appellant was convicted under section 451, subdivision (d), arson of property. Enumerated in the MDO statute is the offense of "[a]rson in violation of subdivision (a) of Section 451, or arson in violation of any other provision of Section 451 . . . where the act posed a substantial danger of physical harm to others." (§ 2962, subd. (e)(2)(L).) Appellant argues that his act of arson did not pose a substantial danger of physical harm to others, thus he does not qualify as an MDO.

We have previously addressed this challenge to the arson provision in the MDO statute in People v. Macauley (1999) 73 Cal.App.4th 704. There, the defendant poured gasoline over his wife's car and set it on fire while it was parked "'very close'" to her boyfriend's house. We concluded that this posed a substantial danger to the occupants of nearby structures, thus fell within section 2962, subdivision (e)(2)(L). (Id. at p. 709.)

Appellant argues that Macauley is factually distinguishable because it concerned a confined space "in which gasoline was present" and specified that the fire was close to people and property. Appellant claims that his offense was merely a "garden variety trash can fire, with no apparent intent to injure anyone." He contends that there is a significant distinction between an automobile and a parcel of property and there was no evidence that the fire was set near the pumps or in an area exposed to flammable material, or that people were on the premises.

Appellant's argument is a challenge to the sufficiency of the evidence. We review the record in the light most favorable to the judgment to determine whether it discloses "evidence that is reasonable, credible, and of solid value" such that a reasonable trier of fact could find beyond a reasonable doubt that appellant's act of arson posed a substantial danger to others. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Miller (1994) 25 Cal.App.4th 913, 919-920.)

Appellant's attempt to distinguish Macauley is unavailing. Although the record did not specify the location of the fire relative to the gas pumps or other flammable material, it did establish that the fire was at a gas station. The risk posed by such a fire would certainly be enhanced by the presence of gasoline and other flammable materials. Appellant argues that there were no bystanders who could have been injured. However, the evidence reflected that a station attendant was close enough to attempt to intervene and observed appellant as he lit the paper on fire.

A reasonable trier of fact could find beyond a reasonable doubt that the arson posed a substantial danger of physical harm to others. Thus, appellant's offense was enumerated under section 2962, subdivision (e)(2)(L). In light of our conclusion, we need not address appellant's argument concerning the "catch all" provision in the MDO statute.

The judgment (order of commitment) is affirmed.

We concur: GILBERT, P.J. YEGAN, J. Martin J. Tangeman, Judge


Summaries of

People v. Dunn

California Court of Appeals, Second District, Sixth Division
Mar 24, 2008
No. B202866 (Cal. Ct. App. Mar. 24, 2008)
Case details for

People v. Dunn

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CLIFFORD DUNN, Defendant and…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Mar 24, 2008

Citations

No. B202866 (Cal. Ct. App. Mar. 24, 2008)