P. v.
Delacruz
Filed
4/18/13 P. v. Delacruz CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE
PEOPLE,
Plaintiff and Respondent,
v.
FRANCES
DELACRUZ,
Defendant and Appellant.
2d Crim. No. B244124
(Super. Ct.
No. F475517)
(San Luis Obispo
County)
Frances
Delacruz appeals from an order committing him to the California Department
of State Hospitals (formerly Department of Mental Health) after the trial court
determined that he was a mentally disordered offender (MDO). (Pen. Code, § 2960 et seq.)
support the finding that his commitment offense was a crime of force or
violence or that he received 90 days of treatment within a year prior to his
parole or release date. (§ 2962, subds.
(c) & (e).) We affirm. (People v. Stevens (2013) 213
Cal.App.4th 1401.)
Procedural History
Appellant suffers from a severe mental disorder, severe
psychotic features manifested by
psychosis, paranoia, auditory hallucinations to kill and rape people, and
ideations that the television sends him special messages and hears his
thoughts. Doctor Phylissa Kwartner testified that appellant met all the
MDO criteria and that the 2010 commitment offense, possession of a firearm
while under the influence of methamphetamine, was a crime of force or
violence. The probation report stated
that appellant entered the victim's home with a loaded shotgun, screamed, and
kneeled behind a couch in a low ready to fire position endangering the victim,
her one-year old child, and the victim's stepfather.
Doctor Kwartner
testified that the mental disorder caused appellant to behave in a threatening
and violent manner and that appellant posed a substantial risk of harm to
others. After appellant was sentenced to
state prison, he assaulted an inmate based on the paranoid belief that the
inmate was about to rape his son.
Appellant was transferred to Atascadero
State Hospital
where he threatened peers and staff and claimed that he did not suffer from a
mental disorder or need psychotropic medications. Doctor Kwartner opined that the mental
disorder was not in remission and that appellant's use of drugs, especially
methamphetamine, would make appellant more paranoid and violent.
Crime of Force or Violence
Appellant argues that
felony possession of a firearm is not a crime of force or violence. To qualify as a commitment offense, the crime
must be either listed in section 2962, subdivision (e)(2)A) through (O), or
come within the catchall provisions of subdivision (e)(2)(P) or (e)(2)(Q); (People
v. Kortesmaki (2007) 156 Cal.App.4th 922, 926.) Section 2962, subdivision (Q) includes a
"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. For
purposes of this subparagraph, substantial physical harm shall not require
proof that the threatened act was likely to cause great or serious bodily
injury."
Appellant argues that he
did not shoot anyone but the probation report states that an intentional or
accidental discharge could have injured the victim. Appellant was delusional, perceived a
threat, entered the victim's house with a loaded shotgun, assumed a ready to
fire position, and refused to leave.
Appellant claims that he
was merely trying to protect the victim.
In People v. Townsend (2010) 182 Cal.App.4th 1151, defendant
suffered paranoid delusions and armed himself with Molotov cocktail bombs to
"protect" himself against "bad guys in the neighborhood
." (Id., at p. 1154.) We held that possession of an incendiary
device, when viewed in context of defendant's paranoid beliefs and intention to
use the device as a weapon, constituted an implied threat of force or
violence. (Id., at pp. 1156-1157.)
The same principle
applies here. Appellant suffered from
paranoid delusions, entered the victim's house with a loaded shotgun, kneeled
down behind a couch, and assumed a ready to fire position. The trial court reasonably concluded that
appellant's paranoid beliefs, viewed in the context of his intention to use the
shotgun, constituted an implied threat of force or violence within the meaning
of the MDO Act.
Citing People v. Baker (2012) 204 Cal.App.4th
1234 (Baker), appellant argues
that a mental health expert cannot opine on whether the commitment offense is a
crime of force or violence. We disagreed
with Baker in People v. Stevens, supra, 213 Cal.App.4th at p. 1408
because it is well settled that a mental health expert can rely on a
probation report in rendering an MDO opinion.
(See People v. Dodd (2005) 133 Cal.App.4th 1564, 1571; People
v. Valdez (2001) 89 Cal.App.4th 1013, 1017.) Doctor Kwanter's reference to the probation
report was not offered for the truth of the facts stated but as the basis for
the doctor's expert opinion. (See People
v. Stevens, supra, __ Cal.App.4th at p. 1401.) "The hearsay relied upon by an expert in
forming his or her opinion is "examined to assess the weight of the
expert's opinion," not the validity of [its] contents. [Citation.]'
[Citation.]" (Ibid.)
We reject the argument
that the MDO commitment order is unsupported by the evidence or violates
appellant's due process rights. (See Jackson v. Virginia (1979) 443
U.S. 307, 319 [61 L.Ed.2d 560, 573-574]; People v. Otto (2001) 26
Cal.4th 200, 210 [victim hearsay statements contain special due process indicia
of reliability].) "The purpose
underlying the MDO law is to protect the public by identifying those offenders
who exhibit violence in their behavior and pose a danger to society. [Citation.]" (People v. Dyer (2002) 95 Cal.App.4th
448, 455.) The evidence here shows that
the commitment offense involved an implied threat to harm others with the
shotgun and that appellant, by reason of his mental disorder, posed a
substantial risk of harm to others. (See
e.g, People v. Kortesmaki (2007) 156 Cal.App.4th 922, 928 [threat to set
fire to dumpster with bottle of flammable fluid a crime of force or
violence].)
90 Days of Treatment
Appellant argues that a
mental health professional cannot opine on whether a prisoner received 90 days
of treatment for his or her mental disorder within the year prior to the
prisoner's parole or release. (§ 2962,
subd. (c).) We rejected a similar
argument in People v. Stevens, supra,
213 Cal.App.4th at page 1407, on the ground that medical records are
reliable and "a doctor's interpretation of these records will 'assist' the
trier of fact in makings its determination.
(Evid. Code, § 801, subd. (a).)"
Doctor Kwartner reviewed appellant's medical and hospital records and
testified, without objection, that appellant received the required 90 days of
treatment. Appellant is precluded from
arguing, for the first time on appeal, that there is no factual or legal basis
for the expert testimony. (Evid. Code, §§ 353, 803; People v. Miller
(1994) 25 Cal.App.4th 913, 917.)
The judgment (MDO commitment order) is affirmed.
NOT
TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
John
A. Trice, Judge
Superior
Court County of San Luis Obispo
______________________________
Gerald J. Miller, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Eric J. Kohm, Deputy Attorney General, for Plaintiff and
Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal Code unless
otherwise stated.
