Filed 3/3/16 P. v. Alexander 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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, 2d Crim. No. B265539
(Super. Ct. No. 15PT-00270)
Plaintiff and Respondent, (San Luis Obispo County)
v.
JOE ALEXANDER,
Defendant and Appellant.
Joe Alexander appeals an order determining him to be a mentally
disordered offender ("MDO") and committing him to the Department of Mental Health
for involuntary treatment. (Pen. Code, § 2962, et seq.)1 We affirm.
FACTUAL AND PROCEDURAL HISTORY
On May 4, 2014, Alexander shattered two windows in his sister's
automobile and set the vehicle on fire. The automobile was parked near the apartment
building where his sister resided; a bystander stood nearby and briefly spoke with
Alexander. Alexander was later convicted of arson pursuant to section 451, subdivision
(d), following his guilty plea. On July 11, 2014, the San Bernardino County court
sentenced him to one year four months imprisonment.
1
All further statutory references are to the Penal Code.
On April 30, 2015, the Board of Parole Hearings determined that Alexander
was an MDO pursuant to the criteria of section 2962. As a condition of parole, the Board
required him to accept treatment from the Department of Mental Health. On May 8,
2015, Alexander filed a petition pursuant to section 2966, subdivision (b) to contest this
decision. Alexander waived a jury trial.
Doctor Joe Debruin, a forensic psychologist employed by Atascadero State
Hospital, reviewed Alexander's treatment records, the written evaluations regarding
Alexander prepared by other mental health experts, and the probation report submitted in
the underlying sentencing proceedings. Debruin also interviewed Alexander.
Debruin opined that Alexander suffers from schizoaffective disorder,
bipolar type, characterized by his disorganized and delusional thinking, auditory and
visual hallucinations, agitation, and paranoia, among other symptoms. Debruin
concluded that Alexander had received the requisite 90 days of treatment for his severe
mental disorder during the year prior to his release date; that he was not in remission at
the time of his Board of Parole Hearings hearing; and that he could not be kept in
remission without treatment. Alexander had displayed overt symptoms of his mental
disorder and had assaulted a county jail employee on June 22, 2014. Debruin also opined
that Alexander represented a substantial danger of physical harm to others by reason of
his mental disorder based upon his "robust criminal history," failures on supervised
release, parole violations, and substance abuse history.
Without objection, Debruin testified that Alexander was convicted of a
requisite qualifying criminal offense -- arson posing a substantial danger of physical harm
to others. (§ 451, subd. (d).) During Alexander's interview, he informed Debruin that he
suffered auditory hallucinations that commanded him to set his sister's automobile on
fire. Alexander stated that he had not been taking his psychotropic medication at the time
of the arson. Debruin also testified that the probation report discloses that a bystander
saw Alexander break the windows, start the fire, and then flee on his bicycle. When
police officers arrived, the vehicle was "fully engulfed" in flames. Based upon this
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evidence, Debruin concluded that Alexander's mental disorder was an aggravating factor
in his commission of the arson.
The trial court determined that Alexander met the requirements of section
2962, subdivisions (d) and (e), beyond a reasonable doubt. In ruling, the trial judge
stated that "the arson of the vehicle did present a substantial danger of physical harm to
others based on the totality of the circumstances."
Alexander appeals and contends that insufficient evidence supports the trial
court's finding that he committed a qualifying offense pursuant to the MDO law.
(§ 2962, subd. (e)(2)(L).)
DISCUSSION
Alexander argues that the evidence is insufficient to establish the statutory
requirement that his underlying crime, arson of property, "posed a substantial danger of
physical harm to others." (§ 2962, subd. (e)(2)(L).) He points to the lack of evidence
concerning the proximity of the vehicle to an inhabited structure or to the use of an
accelerant or flammable liquid.
In reviewing the sufficiency of evidence to support an order made in MDO
proceedings, we review the entire record to determine if reasonable and credible evidence
supports the decision of the trier of fact. (People v. Hannibal (2006) 143 Cal.App.4th
1087, 1096; People v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083.) We view the
evidence and draw all reasonable inferences therefrom in favor of the order. (Ibid.) We
do not reweigh the evidence nor do we substitute our decision for that of the trier of fact.
(Clark, at p. 1083.)
Arson is an inherently dangerous felony posing a substantial risk of injury
or death as a matter of law. (People v. Baker (2012) 204 Cal.App.4th 1234, 1247.)
"Consequently, only slight evidence is necessary to establish that a specific act of arson
posed a substantial risk of physical injury to another person for purposes of section 2962,
subdivision (e)(2)(L)." (Ibid.; see also People v. Kortesmaki (2007) 156 Cal.App.4th
922, 928; People v. Macauley (1999) 73 Cal.App.4th 704, 709.)
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Sufficient evidence supports the finding that Alexander committed arson of
property presenting a substantial danger of physical harm to others.2 According to the
probation report, Alexander set the fire sufficiently close to a female bystander to allow
her to identify him and engage in conversation. Alexander stated that he set the fire
because he had argued with his sister. It is a reasonable inference that his sister lived in
proximity to her parked vehicle. The probation report indicates that the vehicle was
"outside of an apartment building." Alexander expressed self-concern to the probation
officer that "he could have been killed." This evidence and all reasonable inferences
therefrom support the court's finding beyond a reasonable doubt. (People v. Baker,
supra, 204 Cal.App.4th 1234, 1247.)
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
2
In People v. Stevens (2015) 62 Cal. 4th 325, 333-335, our Supreme Court held that
failure to challenge a mental health expert's testimony that a defendant's underlying
criminal offense qualifies pursuant to the MDO law forfeits the argument that the
testimony is inadmissible. Here Alexander did not object to Debruin's testimony
concerning the nature of the underlying offense.
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Jacquelyn H. Duffy, 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, Gerald A. Engler, 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.
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