Opinion
NOT TO BE PUBLISHED.
Superior Court County No. F393944, of San Luis Obispo, John A. Trice, 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, Lance E. Winters, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Peter Gergis appeals the judgment (order of commitment) entered following a court trial at which he was determined to be a mentally disordered offender (MDO). (Pen. Code, § 2962 et seq.) He contends the trial court erred in concluding that his controlling offense of receiving stolen property (§ 496, subd. (a)) involved the use of force or violence as required by section 2962, subdivision (e)(2)(P). We agree and, accordingly, reverse.
Further statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
Gergis suffers from psychosis and schizophrenia, severe mental disorders for which he has received continuous treatment for the past several years from either the Department of Mental Health or the California Department of Corrections and Rehabilitation. On October 17, 2004, Gergis was released from prison on parole following his 2003 convictions for petty theft with a prior (§ 666) and grand theft (§ 487, subd. (d)). Later that day, he was arrested and charged with petty theft, burglary, burglary of an automobile, and assault. On February 16, 2005, he was found incompetent to stand trial and was admitted to Napa State Hospital for treatment. After his competency was restored, he pleaded guilty to receiving stolen property, in violation of section 496, subdivision (a), and was sentenced to state prison. In exchange for his plea, the remaining counts were dismissed.
On June 26, 2006, Dr. Robert Weber, a psychologist with the California Department of Corrections and Rehabilitation, conducted an evaluation of Gergis pursuant to section 2962, subdivision (d)(1), and concluded that he met all six of the criteria for MDO treatment. Dr. Weber summarized the controlling offense as follows: "Solano County Sheriff's Office Arrest Report indicates on 10-19-04, inmate was involved in an altercation at a restaurant and fled from police on a bicycle and was located nearby in a residential are[a]. He was released from [California Medical Facility] same day and found with three cell phones, admitting to stealing the bike, the phones being stolen from vehicles. [¶] [Board of Prison Terms] report indicates on 10-19-04 inmate rode a bike to the restaurant and 'engaged some patrons in a fracas. He began yelling profanities and tried to start a fight with customers. Then he picked up a chair and held it over his head in a threatening manner, as if he was going to throw it at someone. Then he picked up a soda and threw it at a customer, striking her in the back.'"
That section provides that a prisoner shall be ordered to accept treatment as a condition of parole if, among other things: "Prior to release on parole, the person in charge of treating the prisoner and a practicing psychiatrist or psychologist from the State Department of Mental Health have evaluated the prisoner at a facility of the Department of Corrections [now the Department of Corrections and Rehabilitation], and a chief psychiatrist of the Department of Corrections has certified to the Board of Prison Terms that the prisoner has a severe mental disorder, that the disorder is not in remission, or cannot be kept in remission without treatment, that the severe mental disorder was one of the causes or was an aggravating factor in the prisoner's criminal behavior, that the prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to his or her parole release day, and that by reason of his or her severe mental disorder the prisoner represents a substantial danger of physical harm to others."
Michael Musacco, a psychologist from the State Department of Mental Health, agreed that Gergis suffered from a severe mental disorder. He concluded, however, that Gergis did not meet the second, third, and sixth criteria necessary for MDO treatment, namely, that he used force or violence in committing the controlling offense of receiving stolen property, that his severe mental disorder was one of the causes or an aggravating factor in the commission of that offense, and that by reason of his severe mental disorder, he posed a serious threat of physical harm to others. (§ 2962, subds. (a)-(d)(1), (e).) Regarding the second criteria, Dr. Musacco stated: "According to the Board of Prison Terms Revocation Tracking Sheet, the inmate had paroled on the day of this offense. The inmate stole a bicycle from a restaurant and he proceeded to steal three cell phones from automobiles, which had been left unlocked in the owners' garages. [¶] The inmate is found negative on Criterion Two for the crime of receiving stolen property. Additional records noted that the inmate engaged in aggressive behaviors, which led to the detection of his offense. However, the offense of receiving stolen property is not an offense involving force or violence, and the inmate is found negative on Criterion Two for this conviction."
Dr. Musacco also concluded that neither of Gergis's prior convictions for petty theft with a prior (§ 666) and grand theft auto (§ 487, subd. (d)) in 1993 involved the use of force of violence, as contemplated by section 2962. This conclusion is apparently undisputed.
Because Dr. Musacco did not concur in the finding that Gergis's severe mental disorder was a cause or aggravating factor in his commission of the controlling offense, the Board of Prison Terms (BPT) ordered Gergis's further examination by two independent professionals. (§ 2962, subd. (d)(2).) Psychologist Barbara Stark interviewed Gergis on July 7, 2006, and found that he met all six of the MDO criteria. Her statement of the facts of the controlling offense provided: "According to the Solano County Sheriff's Office Arrest Report '(S) was involved in altercation at (restaurant). (S) Fled from Police on a bicycle and later located in a nearby residential area. (S) Admitted being on parole, having just been released from CMF today. During a parole search I found 3 cell phones in (S)'s pants pocket. (S) Admitted stealing the bike and cell phone (unreadable) I found all 3-cell phones had been stolen from vehicles today. A supervisor of A&W positively identified (S) as being the responsible [sic] and signed a C/A for 4125 PC. CDC placed a parole hold. (S) Has apparent mental issues including schizophrenia according to his mother a psychological exam was supposed to occur this week.'"
On July 10, 2006, Gergis was evaluated by psychologist Michael Selby, who also opined that Gergis met all of the MDO criteria. In concluding that the controlling offense qualified as a crime of force or violence, the doctor recounted the following portion of the police report of the incident: " . . . Was involved in an altercation at A&W/Long John Silver Restaurant. Subject fled from police on a bicycle and was later located in a nearby residential area. Admitted being on parole, having just been released from CMF today. During a parole search, I found three cell phones in subject's pants pocket."
After Gergis was certified for treatment as an MDO, he requested a hearing pursuant to section 2966. He was subsequently interviewed by psychologists Robert Suiter and Beryl Davis, who both found that all of the MDO criteria were present. Dr. Suiter recounted the facts of the controlling offense as follows: "Mr. Gergis stole a bicycle from a restaurant and then proceeded to steal three cellular phones from automobiles which had been left unlocked in the owners' garages. [¶] In that instance, he then rode to a restaurant on the bicycle and began yelling profanities in an attempt to start a fight with customers. He then picked up a chair and held it over his head in a threatening manner as if he was going to throw it at someone. After that he picked up a soda and threw it at a customer, striking her in the back."
Dr. Davis's recitation of the facts underlying the controlling offense provided: "The report to the BPH dated October 17, 2004, states that Mr. Gergis was released from revocation at California Medical Facility – Vacaville on that date and was picked up by his mother and other family members. He walked out of a restaurant where he had gone with the family to have breakfast and stole a bicycle. He rode the bicycle later in the day to a restaurant where he engaged some patrons in a verbal altercation. He was reported to begin yelling profanities and tried to start a fight with customers. He picked up a chair and held it over his head in a threatening manner, as if he were going to throw it at someone. He then picked up his soda and threw it at a customer, striking her in the back. When police officers arrived at the restaurant to investigate the complaint by the patrons of the restaurant, Mr. Gergis was seen riding past the restaurant on his bicycle. When apprehended by the police, he was found to have three cell phones in his pocket that were subsequently found to be stolen." (Italics added.)
After the BPT sustained the requirement of MDO treatment, Gergis petitioned for a court hearing pursuant to section 2966, subdivision (b). At that hearing, the People offered the evaluations of the five psychologists who had concluded that Gergis met all the criteria for treatment, as well as the testimony of Gergis's treating psychiatrist, Dr. Joseph Abrahamson. Gergis offered Dr. Musacco's evaluation, and the report of his incompetency to stand trial dated April 1, 2005.
At the conclusion of the hearing, the court ordered Gergis committed for MDO treatment. In finding that the controlling offense involved force or violence, the court reasoned: "It is my belief that the incident in the restaurant that is directly related to the crime of receiving stolen property in the altercation in the restaurant the same day he was arrested for the receiving stolen property, which was at the restaurant, by striking the patron in the back with a drink and then raising a chair above his head to threaten another patron, both of those incidents fall within subparagraphs P, force or violence, or Q, a crime in which Mr. Gergis expressly or impliedly threatened another with the use of force, the chair."
DISCUSSION
Gergis contends the order committing him for treatment as an MDO must be reversed because the offense for which he was sentenced to prison, receiving stolen property, does not qualify as a crime of force or violence as contemplated by section 2962, subdivisions (e)(2)(P) and (Q). We agree.
"In order to qualify an MDO for commitment, the trial court must make a finding that the prisoner meets six statutory criteria. (§ 2962, subds. (a)-(d)(1).) 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. (§ 2962, subd. (b).) The statute enumerates the crimes that qualify a prisoner for MDO treatment (§ 2962, subd. (e)) 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 . . . .' (§ 2962, subd. (e)(2)(P).) (Italics added.)" (People v. Green (2006) 142 Cal.App.4th 907, 911.) Also included are "crime[s] 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." (§ 2962, subd. (e)(2)(Q).)
Gergis was convicted of receiving stolen property under section 496, subdivision (a), based on the fact that he was found in possession of a stolen bicycle and cell phones. There is no evidence that Gergis used, or threatened to use, force or violence in the perpetration of that offense. The MDO law, by its express terms, applies only to crimes "for which the prisoner was sentenced to prison." (§ 2962, subd. (b), italics added.) Although Gergis apparently engaged in violent behavior later the same day, he was not convicted or sentenced to prison for that behavior. There is no evidence from which it can be inferred that Gergis used force or violence in obtaining or maintaining his possession of the stolen bicycle or cell phones, or that any of those items played any part in the altercation at the restaurant. According to the reports, the instrumentalities of Gergis's violent behavior were a chair and a cup. The only possible connection between the stolen property and that behavior is the fact that the stolen property provided the means of travel to the location where the incident took place. That connection is plainly insufficient to support a finding that Gergis's crime of conviction involved the use or threatened use of force or violence, as contemplated by the MDO law.
The People assert that Gergis was also charged with battery and making criminal threats, but that those charges "were dropped for lack of evidence." The evidence cited in support of this assertion, however, refers to a 1999 incident. Besides, if we were to accept the People's claim that other charges were dropped for lack of sufficient evidence, we would have to conclude that the facts giving rise to those charges are irrelevant to the determination whether the commitment offense qualified as a crime of force or violence. (See § 2966, subd. (b) [providing beyond a reasonable doubt standard of proof for MDO criteria].)
People v. Green, supra, 142 Cal.App.4th 907, is determinative. The appellant in that case was charged with making criminal threats (§ 422), felony vandalism (§ 594, subd. (a)), intentional interference with business (§ 602.1, subd. (a)) and unlawful obstruction of a peace officer (§ 148, subd. (a)(1)). He subsequently entered a plea of nolo contendre to vandalism, and the remaining counts were dismissed. (Green, supra, at p. 909.) After he served his prison sentence, the BPT certified him as an MDO. At the trial court hearing, the appellant's treating psychologist testified that " 'there was a threat of violence at the time of the commission of the crime. . . . [¶] [O]n the date that it occurred, [appellant] was out in front of a business with some other individuals who, I believe, were living on the street at that time. He was-the shop owner had called the police, saying that there had been some shoplifting, and the police arrived. They-I believe it was alleged that [appellant] had done some of the shoplifting, and they attempted to detain [him]. He was resistive and difficult. They placed him in the back of the car, and he became angry and kicked out the window of the police car, shattering it. Sometime during the course of that, he threatened the life of the victim. . . .'" (Id., at p. 910.) We concluded that appellant's crime of vandalism was not a qualifying offense under section 2962, subdivision (e)(2)(P), because it involved the use of force against an inanimate object. (Green, supra, at pp. 912-913.) In so concluding, we expressly declined to consider threats the appellant allegedly made in the course of the vandalism because the charges relating to that conduct had been dismissed. (Id., at p. 913.)
The same logic compels us to conclude that Gergis's commitment offense did not involve the use of force or violence as contemplated by subdivision (e)(2)(P) of section 2962. Although Gergis was initially charged with assault, that charge was dismissed. He was convicted of receiving stolen property, which involved the theft of a bicycle and some cell phones. The record is devoid of any evidence that force, violence, or the threat thereof was employed in the perpetration of those thefts. Because the crime for which Gergis was sentenced to prison does not meet the criteria enumerated in section 2962, subdivision (e), he cannot be compelled to accept treatment as an MDO as a condition of his parole.
The judgment (order of commitment) is reversed.
We concur: GILBERT, P.J., YEGAN, J.