Filed 6/23/21 P. v. Matthew B. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B309221
(Super. Ct. No. 20PT-00593)
Plaintiff and Respondent, (San Luis Obispo County)
v.
MATTHEW B.,
Defendant and Appellant.
Matthew B. appeals the judgment declaring him a mentally
disordered offender (MDO) and committing him for treatment to
the California Department of Mental Health as a condition of
parole. (Pen. Code, § 2962 et seq.)1 Appellant’s sole contention is
that his commitment offense – felony vandalism (§ 594, subds.
(a), (b)(1)) – does not meet the MDO criteria. We affirm.
1 All statutory references are to the Penal Code.
The Commitment Offense
Appellant became belligerent while riding on a public
trolley in San Diego. Adolfo Davis told the police: “I was on the
trolley . . . when all of a sudden [appellant] started . . . screaming
at [a] little girl saying, ‘bitch what are you looking at.’ The little
girl was visibly upset and she started crying. I looked at
[appellant] and he jumped at me while I was still sitting
down . . . . [H]e grabbed my neck with his hand and squeezed it.
I put him in a head lock and ‘put the drop on him.’” Davis
“sustained a red scratch/bruise about four inches long on the
right side of his neck just above the collar bone.”
A security officer for the trolley said: “I was standing here
at the trolley [station and] when [the trolley] showed up a lot of
people started rushing off of the trolley saying there was a crazy
guy in there punching windows. When I got on [the trolley] I saw
[appellant] had just finished punching the [trolley] window.”
Appellant damaged two windows – “the exit door window that is
about three feet by one foot” and “the window that divides the
seating area and the waiting platform inside the trolley.” The
latter window “is about three feet by four feet.” The cost of the
damage was approximately $2,500.
At the MDO hearing appellant testified: He was “upset . . .
because my grandma’s house [had] burnt down.” He was “yelling
at everybody on the trolley” because “they said that my mom got
fucked by a donkey . . . and . . . they were making fun of my
grandma’s house burning down.” “[L]ittle girls” on the trolley
were “watching a video of me” on their cell phone. “[T]hey were
acting like they had something in the phone of me or they were
videotaping me, so I was tripping out.”
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Appellant continued: “I’m sitting on the trolley and I’m
pissing everybody off, the whole trolley, . . . and then the next
thing you know the dude [Davis] jumps up because . . . I’m also
cussing at the families on the trolley as well, and then that’s
when I grabbed him by his clavicle, and I didn’t grab him by his
throat . . . because I didn’t want to be violent, and then I punched
him.” “He [Davis] jumped at me so I jumped at him.” “I was just
punching the window because I just got into a confrontation with
a Mexican.” “[I]t’s stupid for me to break windows, but I didn’t
potentially mean to. . . . I didn’t do it in violence towards
anybody. I didn’t hurt anybody.”
Appellant was charged with felony vandalism and
misdemeanor battery. He pleaded guilty to the vandalism, and
the battery was dismissed. He was sentenced to prison for two
years.
Trial Court’s Ruling
The trial court ruled that appellant had met the MDO
commitment criteria under section 2962, subdivision (e)(2)(Q).
The subdivision applies to “[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 a manner
that a reasonable person would believe and expect that the force
or violence would be used. . . . [S]ubstantial physical harm does
not require proof that the threatened act was likely to cause great
or serious bodily injury.” (Ibid.)
Standard of review
“The substantial evidence rule applies to appellate review
of the sufficiency of the evidence in MDO proceedings. [Citation.]
We review the record in the light most favorable to the judgment
to determine whether it discloses substantial evidence—‘evidence
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that is reasonable, credible, and of solid value’—such that a
reasonable trier of fact could find beyond a reasonable doubt that
the commitment offense was a qualifying offense under the MDO
statute.” (People v. Labelle (2010) 190 Cal.App.4th 149, 151
(Labelle).) We “‘draw[] all reasonable inferences, and resolv[e] all
conflicts, in favor of the judgment. . . .’” (People v. Baker (2012)
204 Cal.App.4th 1234, 1244.)
Substantial Evidence Supports Finding
that Commitment Offense Met MDO Citeria
Appellant contends, “[T]his case is subject to, governed by,
and on all fours with this Court’s decision in [People v.] Green
[(2006) 142 Cal.App.4th 907 (Green)].” Green was convicted of
felony vandalism for kicking out the rear window of a police car.
We concluded that the crime did not qualify as an MDO offense
under section 2962, subdivision (e)(2)(P), which applies to “[a]
crime . . . in which the prisoner used force or violence, or caused
serious bodily injury.” (Ibid.) We held that “the application of
force against property is not a qualifying offense pursuant
to section 2962, subdivision (e)(2)(P).” (Green, supra, at p. 912.)
Green had also been charged with making terrorist threats
(§ 422), but the charge was dismissed when he pleaded nolo
contendere to felony vandalism. We did not “address [Green’s]
argument concerning terrorist threats because that charge . . .
was dismissed.” (Green, supra, 142 Cal.App.4th at p. 913.) In a
subsequent case we held that an MDO commitment could not be
sustained upon an arson charge because it had been dismissed
pursuant to a plea agreement. (People v. Kortesmaki (2007) 156
Cal.App.4th 922, 927 [“Because [Kortesmaki] was not serving his
prison sentence for committing arson, his MDO commitment
cannot be sustained on the basis of that crime”].) Appellant’s
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MDO commitment therefore cannot be sustained upon the
dismissed charge of misdemeanor battery against Davis. (Id. at
p. 926-927 [“As we recognized in People v. Green . . . , other
crimes the prisoner may have committed in perpetrating the
commitment offense are irrelevant to the determination whether
that offense meets the criteria for MDO treatment”].)
The present case is distinguishable from Green. Here, the
prosecutor argued that the felony vandalism qualified as an MDO
offense under section 2962, subdivision (e)(2)(Q), whereas in
Green the People relied solely on subdivision (e)(2)(P). In his
reply brief appellant contends that the People should be barred
from making the subdivision (e)(2)(Q) argument on appeal
because they failed to make it in the trial court: “It is
fundamentally unfair to require appellant to now defend against
a theory or argument that was never presented at trial or relied
on by the trial court, and that has instead been invented solely
for purposes of the present appeal.” But the People clearly raised
the subdivision (e)(2)(Q) theory in the trial court. The prosecutor
stated: “It appears that the test is simply within the language of
subdivision (Q). The test is whether a behavior . . . impliedly
threatens another such that a reasonable person would be placed
in fear.” “[I]n order to . . . threaten the people on the trolley, he
punched the windows after having unsuccessfully assaulted the
man [Davis] who was getting the better of him. [¶] So I’d ask the
Court to find that it was a crime in which he impliedly
threatened force or violence on others . . . .”
In finding appellant to be an MDO, the trial court here
said, “I’m adopting the reasoning offered by [the prosecutor].”
Thus, the trial court found that appellant had “impliedly
threatened another with the use of force or violence likely to
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produce substantial physical harm in a manner that a reasonable
person would believe and expect that the force or violence would
be used.” (§ 2962, subd. (e)(2)(Q).)
Substantial evidence supports the court’s finding. In the
confined space of a trolley and in the presence of other
passengers, including children, appellant was punching windows
with sufficient force to break them. It is common knowledge that
punching a window can cause the glass to shatter, injuring
bystanders. (See Aldridge v. State (2014) 325 Ga.App. 774, 775
[755 S.E.2d 19, 20] [“The punch caved in the window and
shattered glass all over Sewell and his grandson, and Sewell
sustained cuts to his head”]; Fate v. Harper (3d Cir. 2014) 558
Fed.Appx. 250, 251 [“Walker . . . punched and shattered Fate’s
windshield and driver’s side window, sending glass into Fate’s
face”]; Hall v. Donhue (N.D.Ind. Apr. 13, 2007, No. 3:07-CV-146
RM) 2007 U.S.Dist.LEXIS 28323, at *2) [“Hall alleges that . . .
Correctional Officer Klauer used excessive force against him
when he punched a window causing glass to shatter onto his face
and into his eyes”].)
In Labelle, supra, 190 Cal.App.4th 149, we recognized the
danger inherent in the shattering of a window: “[T]he officer . . .
ordered appellant to stop kicking the window. When appellant
continued kicking and shattered the window, the officer ‘raised
his arm to protect his eyes’ from shards of glass. A small shard of
glass flew from the shattered window and punctured the officer’s
thumb. It is reasonable to infer that, had the officer not ‘raised
his arm to protect his eyes,’ the shard of glass could have caused
substantial harm to his eyes.” (Id. at p. 152.)
Appellant maintains, “[N]o evidence that any of the
occupants of the trolley, most of whom had apparently left the
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scene following the alleged battery, were at any risk from the
broken glass from the trolley’s windows.” But it is reasonable to
infer that the passengers were inside the trolley when appellant
was punching the windows and were therefore at risk of injury
from broken glass. The trolley’s security officer said that, when
the trolley arrived at the station where he was standing, “a lot of
people started rushing off of the trolley saying there was a crazy
guy in there punching windows.”
Conclusion
“[V]iew[ing] the evidence in the light most favorable to the
People and . . . presum[ing] in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence,” we conclude that a reasonable trier of fact could find
beyond a reasonable doubt that appellant’s commitment offense
satisfied the MDO criteria. (People v. Ochoa (1993) 6 Cal.4th
1199, 1206.)
Disposition
The judgment (order committing appellant as an MDO) is
affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Michael Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Gerald J. Miller, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, Eric J. Kohm, Deputy Attorney
General, for Plaintiff and Respondent.