P. v.
Filed 6/21/12 P. v. Marshall CA4/2
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
MELINDA MARSHALL,
Defendant and Appellant.
E054166
(Super.Ct.No. FELSS1004719)
OPINION
APPEAL
from the Superior Court of
County. Katrina West,
Judge. Affirmed.
James
M. Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Meredith White and Scott
C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Melinda Marshall filed a petition under Penal Code section 2966,
subdivision (b),
name="_ftnref1" title="">[1] challenging the Board of Prison Terms’
certification that she met all six criteria for commitment for treatment as a
condition of parole under the Mentally
Disordered Offender Act (MDO Act, § 2960 et seq.).
criteria had been met. On appeal,
defendant contends that there was insufficient evidence to sustain the MDO
commitment, since her underlying conviction was for
which is not an enumerated, qualifying offense under section 2962. We affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
name="_ftnref3" title="">[3]
Defendant
was at an amusement park in Santa Monica. She went to the “ring toss†game
counter. An eight-year-old girl (the
victim) was standing at the counter with her mother. Defendant approached the victim, grabbed her
by the wrist, and pulled her approximately 10 to 15 feet away from the
counter. The victim looked at her mother
and indicated that she was in distress.
The victim’s mother approached defendant and said, “What do you think
you are doing?†Defendant stated, “You
stole her from me yesterday, bitch. This
is my daughter, don’t you ever try that again.â€
Defendant began to scream obscenities at the victim’s mother. The victim’s mother pulled her daughter away
from defendant. The victim hid behind
her mother, while her mother argued with defendant. The victim’s aunt notified park security.
Police
officers interviewed defendant, and she said that she was an undercover law
enforcement officer, and that she had placed the victim in her custody for her
protection. Defendant also said that
because of her undercover status, she was “forbidden to carry identification,â€
and she refused to identify herself or give the officers any information. The officers transported defendant to the
hospital for medical clearance. At the
hospital, defendant became verbally abusive to the officers and hospital
staff. When asked if she needed
anything, she said, “I need you to die.â€
After leaving the hospital, an officer put her in the back seat of the
vehicle and put her seat belt on. She
continued to be verbally abusive and spit in the officer’s face.
Defendant
was charged with one count of attempted kidnapping (§§ 664/207,
subd. (a)) and battery on a peace officer.
prison conviction allegation within the meaning of section 667, subdivision
(a). Defendant admitted the attempted
kidnapping and the prior prison allegation.
She was sentenced to a total of 10 years in prison.
ANALYSIS
The Court Properly Found
That Defendant Met the MDO Criteria
Defendant
argues there was insufficient evidence to sustain her MDO commitment, since her
underlying conviction was for attempted kidnapping, which is not an enumerated
offense in section 2962, subdivision (e).
She further contends that the court made no express or implied findings
that the underlying offense involved the use of force, or the threat of the use
of force. (§ 2962,
subd. (e)(2)(P) & (e)(2)(Q).)
The People do not dispute that attempted kidnapping is not an enumerated
offense, but argue that the court implicitly found that defendant’s offense
qualified under section 2962, subdivision (e)(2)(P) and
(e)(2)(Q). We conclude that the evidence
supported a finding that the underlying offense qualified under section 2962,
subdivision (e)(2)(P)
name="_ftnref5" title="">[5]
A. Relevant
Law
“In
order to qualify an MDO for commitment, the trial court must make a finding
that the prisoner meets six
statutory criteria. [Citation.] 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.
[Citation.] The statute
enumerates the crimes that qualify a prisoner
for MDO treatment [citation] 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 . . . .†[Citation.]â€
(People v. Green (2006) 142
Cal.App.4th 907, 911; § 2962, subds. (b) & (e)(2)(P).)
B. Hearing
on the Section 2966 Petition
A
court trial on the section 2966, subdivision (b) petition was held on June 30,
2011. The parties stipulated that Dr.
Gene Berg was an expert witness in the area of forensic psychology, with
expertise regarding the MDO criteria.
Dr. Berg conducted an evaluation of defendant on October 12, 2010. Prior to interviewing her, Dr. Berg reviewed
defendant’s mental health treatment history, medical records, and prison
records. Defendant had received mental
health treatment for 90 days during the year prior to his interview.
Regarding his interview with
her, Dr. Berg noted that defendant was “marginally unkept [sic] in appearance,†there was a “somewhat peculiar bizarre quality
on [sic] the way she presented
herself,†and she “was very fast paced and pressured in her speech.†He further described her as grandiose,
incoherent at times, “very loose and tangential,†and paranoid. He also observed that she was “very
delusional,†noting that she insisted that, while she was in prison, she was a
model and was working undercover.
Defendant denied having a mental illness and said she did not require
treatment. In Dr. Berg’s opinion, a
major mental disorder was an aggravating factor or cause in the attempted
kidnapping. He opined that she was
suffering from paranoid
schizophrenia. Dr. Berg testified
that if defendant lived in an unstructured situation, she would “readily
decompensate,†and that she “really would not be able to function at all in the
outside.†He also opined that there was
“a high degree of potential for her acting out and being a danger to people.â€
Based
on the evidence presented, the court found that the People had demonstrated
beyond a reasonable doubt that defendant met the MDO criteria. Specifically, the court stated that the
People had proven defendant “was convicted by the requisite crime as required
under Penal Code Section 2962, et seq.; that she [had] a severe mental
disorder; that the severe mental disorder [was] one of the causes of the crime
for which she was sentenced to prison or was an aggravating factor in the
commission of the crime; [and] that she [had] been treated for the severe
mental disorder in a state or federal prison, a county jail, or a state
hospital for 90 days or more within the year before her parole release
date.†The court further found that the
mental disorder was not in remission or could not be kept in remission without
treatment, and that, because of her mental disorder, she represented a
substantial danger of physical harm to others.
C. The
Court Implicitly Found That Defendant’s Crime Was a Qualifying Offense
“In
considering the sufficiency of the evidence to support MDO findings, an
appellate court must determine whether, on the whole record, a rational trier
of fact could have found that defendant is an MDO beyond a reasonable doubt,
considering all the evidence in the light which is most favorable to the
People, and drawing all inferences the trier could reasonably have made to
support the finding. [Citation.] ‘“‘Although we must
ensure the evidence is reasonable, credible, and of solid value, nonetheless it
is the exclusive province of the trial judge or jury to determine the
falsity of the facts on which that determination depends. [Citation.]
Thus, if the [finding] is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our evaluation of
a witness’s credibility for that of the fact finder. . . .’ [Citation.]â€â€™
[Citations.]†(
1072, 1082-1083 [Fourth Dist., Div. Two] (Clark).)
The
court here explicitly stated that defendant “was convicted [of a] requisite
crime as required under Penal Code section 2962, et seq.†It is undisputed that attempted kidnapping is
not listed as a qualifying offense in section 2962, subdivision (e). Therefore, we infer that the court made its
finding under section 2962, subdivision (e)(2)(P), as the evidence supports
such finding.
Section
2962, subdivisions (b) and (e)(2)(P), provide that to be adjudged an MDO, a
defendant must have used force or violence in the underlying offense, and a
severe mental disorder must have been a cause of or aggravating factor in the
crime. (See Clark, supra, 82
Cal.App.4th at p. 1082.) Thus, we
turn to the question of whether defendant used force or violence in the
underlying offense, within the meaning of section 2962, subdivision
(e)(2)(P). In doing so, we first note
that “the California Supreme Court held that the concept of
‘force,’ as used in section 2962, subdivision (e)(2)(P), has an ordinary
meaning, which requires no further definition for its adjudication. [Citation.]â€
(Clark, at p. 1083.)
In
1078 (Pretzer), the defendant entered
a cat hospital, pretending to be armed (with a plastic razor in his pocket),
and ordered employees to go to a back room and give him some drugs. He pled guilty to false imprisonment. (Id.
at pp. 1081-1082.) The trial court
found that the defendant satisfied the criteria of section 2962, including the
requirement that the crime for which he was convicted was one involving
“‘force or violence, or caused serious bodily injury as defined in paragraph
(5) of subdivision (f) of section 243.’â€
(Pretzer, at p. 1082; see
also, § 2962, subd. (e)(2)(P).)
On appeal, the defendant argued that his offense did not satisfy the
“force or violence†requirement of section 2962, subdivision (e), since his
offense involved a threat of harm rather than application of physical
power. (Pretzer, at p. 1082.)
The court found that the Legislature intended “‘force’ to have a broad
meaning and to encompass such circumstances as these.†(Id.
at p. 1083.) The court stated that, even
though the defendant may not have directly applied physical power against the
employees, “his behavior in pretending to be armed posed a danger to
them.†(Ibid.) The court added that
his acts “could have invited resistance or escape with possible resulting
injury†to others. (Ibid.)
In
the instant case, the undisputed evidence established that defendant used
actual force in the attempted kidnapping.
Defendant pulled the victim by
her wrist approximately 10 to 15 feet away from the victim’s mother. The evidence shows that the victim looked at
her mother and indicated she was in distress.
When the victim’s mother confronted defendant, defendant screamed
obscenities at her. The victim was
clearly afraid of defendant, as she hid behind her mother, after her mother
took her back. On this record, it is
clear that force was necessarily involved in defendant taking the victim,
against her will. Furthermore,
defendant’s acts “could have invited resistance or escape with possible
resulting injury†to the victim or her mother.
(Pretzer, supra, 9 Cal.App.4th at p. 1083.)
Viewing
the evidence in the light most favorable to the judgment, as we must, we
conclude that a reasonable trier of fact could find beyond a reasonable doubt
that the commitment offense met the section 2962, subdivision (e)(2)(P),
criterion involving the use of force.
The evidence that defendant pulled the victim away from her mother,
against her will, was sufficient evidence of the use of force required under
the MDO law to establish defendant’s need for treatment as an MDO.
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references will be to
the Penal Code, unless otherwise noted.
name="_ftn2" title=""> [2] Section 2966, subdivision (b), provides that
“[a] prisoner who disagrees with the determination of the Board of Prison Terms
that he or she meets the criteria of Section 2962, may file . . . a petition
for a hearing on whether he or she, as of the date of the Board of Prison terms
hearing, met the criteria of Section 2962.â€
