Opinion
Review Granted Aug. 12, 1998.
Previously published at 63 Cal.App.4th 342
Kent D. Baker, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Steven D. Matthews and Christina Russotto, Deputy Attorneys General, for Plaintiff and Respondent.
STEVEN J. STONE, Presiding Justice.
Fernando Rodarte appeals from his involuntary commitment as a mentally disordered offender (MDO) following a court trial in which it was found that he meets the criteria of PENAL CODE SECTION 2962 and should be committed to the California Department of Mental Health for treatment as a condition of his parole.
All statutory references are to the Penal Code unless otherwise stated.
We hold that the making of terrorist threats (§ 422) is an offense in which a person uses force or violence for purposes of the MDO statute. (§ 2962, subd. (e)(2)(P).)
FACTS
On December 16, 1994, Fernando Rodarte was convicted of making terrorist threats based upon two letters he sent to Los Angeles County Supervisor Gloria Molina on May 17, and May 27, 1993. According to the probation report, the first letter complained about problems with his probation officer and neighbors. The second called the supervisor a "fool," accused her of lying and killing people, and apparently threatened to kill her. The letter was signed, "Love, Satan," and depicted a pentagram. Rodarte had previously called Supervisor Molina's office to complain about various matters and had attempted to see her at the Hall of Administration. Molina was frightened for herself, her family and her staff. There is no evidence Rodarte took any steps to carry out his threat.
Rodarte was on probation for making terrorist threats against a neighbor.
The letter was not part of the record on appeal and is referred to only once in a probation report.
Rodarte was sentenced to three years in state prison and was scheduled to be released on parole on November 10, 1996. Prior to his release, however, he was certified as an MDO pursuant to section 2962 and committed to Atascadero State Hospital. He petitioned the San Luis Obispo Superior Court for a hearing to contest his continued confinement. (§ 2966, subd. (b).)
At a subsequent court trial, the prosecutor presented the testimony of a staff psychologist from Atascadero, Susan Holt, who opined that Rodarte met the test for an MDO, including "(a) [He] has a severe mental disorder that is not in remission or cannot be kept in remission without treatment.... In response to an inquiry by the court, Dr. Holt also stated her opinion that Rodarte met the final requirement, that the underlying crime was one in which he "used force or violence." (§ 2962, subd. (e)(2)(P).) She based her opinion on information in a probation report that Rodarte had threatened to kill Supervisor Molina, and the supervisor felt threatened. Rodarte testified on his own behalf and admitted sending the letters.
The trial court denied Rodarte's petition and committed him to the California Department of Mental Health for treatment, finding that he qualified as an MDO according to section 2962.
DISCUSSION
Rodarte concedes the prosecution proved beyond a reasonable doubt that he met all the criteria for an MDO except that he "used force or violence, or caused serious bodily injury" in committing the underlying crime. (§ 2962, subd. (e)(2)(P).) He contends that the making of a terrorist threat in violation of section 422 is not such an offense.
Section 422 provides: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."
We have previously held that the terms "force" and "violence" as used in section 2962 are not synonymous, and "force" has a broad meaning which encompasses any action by the defendant which overcomes the victim's resistance or implies that force may be used. (People v. Pretzer (1992) 9 Cal.App.4th 1078, 1082-1083, 11 Cal.Rptr.2d 860.) An implied threat that "invite(s) resistance or escape with possible resulting injury" is sufficient to constitute "force." (Id., at p. 1083, 11 Cal.Rptr.2d 860.)
There are limits, however. For example, the standard CALJIC definition of force or violence for purposes of battery--including a " 'slight touching' done in an insolent, rude, or angry manner"--is too broad to lead to potential lifetime confinement. (People v. Collins (1992) 10 Cal.App.4th 690, 696-697, 12 Cal.Rptr.2d 768.)
Rodarte contends the conduct proscribed by section 422 is also too broad because the statute does not require the use of force or violence as an express element. It also includes conditional threats (People v. Brooks (1994) 26 Cal.App.4th 142, 148-149, 31 Cal.Rptr.2d 283; People v. Stanfield (1995) 32 Cal.App.4th 1152, 1157-1158, 38 Cal.Rptr.2d 328; People v. Dias (1997) 52 Cal.App.4th 46, 60 Cal.Rptr.2d 443), and the defendant need have no intention to actually carry out the threat. (People v. Garrett (1994) 30 Cal.App.4th 962, 966, fn. 2, 36 Cal.Rptr.2d 33.) On its face, section 422 does not require the use of force or violence as an element. But to come within the statute, and to satisfy constitutional concerns, the threat must be "so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety...." (§ 422; People v. Fisher (1993) 12 Cal.App.4th 1556, 1560, 15 Cal.Rptr.2d 889.) Only those conditional threats which reasonably convey to the victim that they are intended will sustain a conviction. (People v. Brooks, supra, 26 Cal.App.4th at pp. 148-149, 31 Cal.Rptr.2d 283.) In other words, the victim must have believed that some force or violence might be used against her and reacted to it, taking into account the surrounding circumstances. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340-1341, 69 Cal.Rptr.2d 728; People v. Martinez (1997) 53 Cal.App.4th 1212, 1218, 62 Cal.Rptr.2d 303.) The defendant's threats imply that force will be used. (People v. Pretzer, supra, 9 Cal.App.4th at pp. 1082-1083, 11 Cal.Rptr.2d 860.)
We need not relitigate the facts surrounding Rodarte's conviction. Whether by plea or by jury verdict, his conviction for violating section 422 assumes the truth of the elements of the offense, including the gravity of the threats, the speaker's intent to threaten the victim, and the victim's reaction of being placed in "sustained fear." (See, e.g., People v. Guerrero (1993) 19 Cal.App.4th 401, 407-409, fn. 4, 23 Cal.Rptr.2d 803 [plea of guilty admits all the elements of the offense]; People v. Cruz (1996) 13 Cal.4th 764, 771, 55 Cal.Rptr.2d 117, 919 P.2d 731 ["judgment of conviction establishes the necessarily adjudicated elements of the crime involved in the conviction ..."].) Those elements are sufficient to constitute "force" within the meaning of section 2962.
The judgment is affirmed.
GILBERT and YEGAN, JJ., concur.