Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County Super. Ct. No. F398993 of San Luis Obispo, Ginger E. Garrett, 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, Victoria B. Wilson, Paul M. Roadarmel, Jr., Supervising Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Jason Howell appeals from his commitment as a mentally disordered offender (MDO) under Penal Code section 2960 et seq. He contends there was insufficient evidence to support the commitment because his conviction for negligent discharge of a firearm (§ 246.3) did not involve force or violence or the threat of force or violence as required by section 2962, subdivisions (e)(2)(P) and (Q). We affirm.
All statutory references are to the Penal Code.
In relevant part, section 246.3 provides: "(a) Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison."
FACTS AND PROCEDURAL HISTORY
In March 2000, Howell was convicted of negligent discharge of a firearm (§ 246.3) and receiving stolen property (§ 496, subd. (a)) and was sentenced to prison for 16 months. While on parole for those offenses, he was convicted of second degree burglary. (§ 459.) On February 6, 2007, the Board of Prison Terms determined that Howell met the criteria for commitment as an MDO. Howell petitioned for a court hearing pursuant to section 2966, subdivision (b).
At the March 27, 2007, hearing before the San Luis Obispo County Superior Court, Brandon Yakush, a staff psychologist at Atascadero State Hospital, testified that Howell met all the criteria for an MDO commitment under section 2962, subdivisions (a) through (e). Dr. Yakush testified that Howell suffered from the severe mental disorder of chronic, undifferentiated schizophrenia with "symptom[s] of disorganized thinking, delusions, and auditory hallucinations," and was not in remission and could not be kept in remission without treatment because of continuing symptoms. (§ 2962, subd. (a).) Dr. Yakush testified that the severe mental disorder was a cause or aggravating factor in the commission of the negligent discharge of a firearm offense (§ 2962, subd. (b)), that Howell received more than 90 days of treatment in the year prior to his parole date (§ 2962, subd. (c)), and that he represented a substantial danger of physical harm to others by reason of his disorder (§ 2962, subd. (d)).
Dr. Yakush also testified that the crime involved the use of force or violence. (§ 2962, subd. (e).) Based on the probation and police reports, Dr. Yakush testified that Howell shot a .22-caliber rifle into a clubhouse "surrounded" by homes in a housing development. The bullet went through the window of the front door. Because the shooting occurred in the evening or night, there were no reports of any occupants in the clubhouse, but the clubhouse was often occupied and could have been occupied at the time of the shooting. In addition, the bullet could have strayed or ricocheted towards one of the occupied houses next to the clubhouse.
In a written report, psychologist Elaine M. Tenney also concluded that Howell met all the criteria for an MDO commitment. As relevant to this appeal, Dr. Tenney concluded that the disorder was one of the causes or aggravating factors in the negligent discharge of a firearm offense which involved the use or threat of force or violence because of the danger to other people.
In his defense, Howell submitted a report by psychologist Alison J. Little. Dr. Little concluded that Howell suffered from a severe mental disorder, was not in remission and could not be kept in remission due to continuing symptoms, had received 90 days of treatment in the year prior to his parole, and represented a substantial danger to others by reason of his mental disorder.
Dr. Little, however, concluded that the negligent discharge of a firearm offense did not involve force or violence because Howell shot at an "unoccupied building" and there "were no reports of any potential victims in or near the area." She also concluded that Howell's severe mental disorder was not a cause or aggravating factor in that offense because he "was not described by arresting officers as acutely mentally ill."
After the hearing, the trial court ordered Howell committed to the Department of Mental Health as an MDO. The trial court found that all the section 2962 criteria were satisfied and, in particular, that the negligent discharge of a firearm offense involved force or violence. Adopting the People's closing argument, the court concluded that firing a rifle at a clubhouse often occupied by people and in the vicinity of occupied homes was inherently dangerous to human life and involved the threat or use of force or violence.
DISCUSSION
Howell contends he is not subject to treatment as an MDO because there is insufficient evidence that the section 246.3 negligent discharge of a firearm offense qualifies as a crime of force or violence under either subdivision (e)(2)(P) or (e)(2)(Q) of section 2962. We disagree.
The MDO law applies to prisoners who are serving prison sentences for crimes enumerated in section 2962, subdivisions (e)(2)(A) through (O) or that fall within the catchall provisions of section 2962, subdivisions (e)(2)(P) or (e)(2)(Q). Subdivision (e)(2)(P) includes any crime "in which the prisoner used force or violence, or caused serious bodily injury." Subdivision (e)(2)(Q) includes any 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. . . ."
We review the trial court's finding under the substantial evidence standard. We will affirm if the evidence, viewed in the light most favorable to the judgment, could have led any rational trier of fact to make a finding that the qualifying offense involved the threat or use of force or violence. (See People v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083; People v. Martin (2005) 127 Cal.App.4th 970, 975.) Here, we conclude that there is substantial evidence that the section 246.3 offense constitutes a crime "in which the prisoner used force or violence" as set forth in subdivision (e)(2)(P) of section 2962.
Howell argues that shooting at an empty building was not "actually dangerous" to any person. Citing People v. Green (2006) 142 Cal.App.4th 907, and People v. Dyer (2002) 95 Cal.App.4th 448, he claims his violence was directed only at the building itself, an inanimate object, because there were no people inside the clubhouse. Despite the absence of occupants, however, shooting at the clubhouse, and hitting its front door, created a substantial danger of human injury or death.
As the trial court indicated, this case is analogous to People v. Macauley (1999) 73 Cal.App.4th 704. In Macauley, the prisoner was convicted of arson of property (§ 451, subd. (d)) after he poured gasoline over his wife's car and set it on fire while it was parked in a residential neighborhood. (Id., at p. 709.) This court concluded that the offense involved the use of force or violence because, although no one was standing near the car, the fire posed a substantial danger of physical harm to the occupants of nearby structures. (Ibid.) Similar to Macauley where the force or violence was the danger of injury or death in a fire, the force or violence in the instant case was the danger of injury or death from a bullet. The fact that no injury occurred in either case does not render the offense insufficient to support an MDO commitment.
The statutory language of section 246.3 also compels the conclusion that the offense involves the use of force or violence. The statute requires the willful and grossly negligent discharge of a gun "which could result in injury or death to a person." (§ 246.3.) Based on this language, other courts have concluded that the offense is an inherently dangerous crime and an act of violence against people if not against a specific person. (People v. Robertson (2004) 34 Cal.4th 156, 166 [sufficient danger to human life to support second degree felony murder conviction]; People v. Clem (2000) 78 Cal.App.4th 346, 351, 353-354 [same]; People v. Higareda (1994) 24 Cal.App.4th 1399, 1413 [conviction supports multiple-victim exception to section 654].) A section 246.3 offense "'by its very nature . . . cannot be committed without creating a substantial risk that someone will be killed'" and the statute "'presupposes that there are people in harm's way.'" (Robertson, at pp. 166, 169;Clem, at pp. 351, 353.)
Howell also argues that the trial court's express ruling was that the offense satisfied the requirements of section 2962, subdivision (e)(2)(Q), and that there is no evidence to support application of that subdivision because there was no evidence he "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." We agree that the offense did not involve a threat to any particular person, but reject Howell's further assertion that the trial court's express ruling constitutes an erroneous factual finding that prevents application of section 2962, subdivision (e)(2)(P). The record as a whole shows that the trial court found the use, and not merely the threat, of force or violence and properly relied on subdivision (e)(2)(P) in its order.
The judgment (order of commitment) is affirmed.
We concur: GILBERT, P.J., YEGAN, J.