Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF129155. Paul A. Vortmann, Judge.
Paul Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
A prisoner qualifies for involuntary commitment to a state hospital as a mentally disordered offender (MDO) if, among other things, the offense for which he was imprisoned was a qualifying offense. Among the offenses that qualify are those “in which the prisoner used force or violence.…” (Pen. Code, § 2962, subd. (e)(2)(P).) Defendant Michael Paul Martin, who had previously been committed as an MDO, argued at a proceeding to extend his commitment that his offense—petty theft of the shoplifting variety—was not a qualifying offense even though he kicked a security guard who apprehended him after he left the store with the stolen merchandise. As a matter of law, he argues, this was not a crime “in which” he used force or violence because the petty theft was completed by the time he administered the kick and he was not charged with any other crime, such as battery.
Subsequent statutory references are to the Penal Code.
We disagree, affirm the judgment, and deny the petition for writ of habeas corpus in which Martin also asserts his claim. Since we hold for the People on the merits, we do not discuss their argument that Martin’s claim is procedurally barred.
FACTUAL AND PROCEDURAL HISTORIES
Martin was sentenced to prison in 2004 for committing petty theft after having been convicted of a prior theft (§ 666). When he was paroled in 2005, prison authorities found him to be an MDO; he was committed to a state hospital. In November 2005, his parole was revoked and he was returned to prison because he assaulted a member of the hospital staff. Prison authorities found him to be an MDO again in February 2006 and again had him committed to the hospital. The Board of Prison Terms upheld the MDO finding in March 2006. Martin’s involuntary commitment was extended for one year after his annual hearing in 2007. This appeal is from the order issued upon the district attorney’s petition filed in 2008 under section 2970 for an additional one-year extension.
At the hearing on the petition, a psychologist from the state hospital testified to establish the statutory requirements for an extension of an MDO commitment, “that the patient has a severe mental disorder, that the patient’s severe mental disorder is not in remission or cannot be kept in remission without treatment, and that by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others.…” (§ 2972, subd. (c).) It was established that Martin had “schizoaffective disorder, depressed type,” which is “both a severe psychosis and a severe mood disorder.” His symptoms included paranoid delusions that the mafia, whose agents included hospital staff and patients, was trying to kill him; that his wife had killed his children; and that his mother was being shot at down the hallway from where he was being interviewed. Martin also experienced grandiose delusions: He believed he was the messiah, as well as “some kind of a ruler” of Visalia or of the world. He had auditory hallucinations: voices told him to hurt himself or other people.
At the hospital, Martin was being treated with antipsychotic medications, including one “extremely difficult medication” that requires frequent blood draws. For most of the year preceding the hearing, Martin was subject to an order authorizing involuntary administration of the medications. He was assigned to several therapy groups, but usually failed to attend because of his paranoid fears of others.
As a basis for his opinion that Martin was dangerous, the psychologist mentioned the 2005 assault on a hospital staff member and an incident on June 14, 2008, in which Martin took a “confrontational stance” toward a staff member and had to be physically restrained. The psychologist also relied on the offense for which Martin was incarcerated when he was first found to be an MDO. He described the crime:
“During the incident Mr. Martin entered a J.C. Penney’s store, was observed by security via their security camera system taking some items of clothing into the—into the dressing room, and when he came out, he no longer had the item with him and the item was not in the room. That he had left, also taking some shoes and exiting the store without paying.
“When security approached him and asked him to come back in the store with them, Mr. Martin became angry at the security officer and kicked the officer one time in the lower back.”
According to the transcript of the 2004 preliminary hearing on the petty theft, a police officer testified that, when he arrived on the scene, security guards told him Martin kicked a guard after the guard led Martin back into the store and handcuffed him in an office. By the time the police officer arrived, the guards had recovered a stolen pair of shorts, but Martin was still wearing the stolen shoes.
Martin’s counsel argued to the trial court that this was not an offense that qualified Martin for MDO status under section 2962. In responding to this, the court first discussed section 2962, subdivision (e)(2)(P), which states that a crime is a qualifying offense if it is “[a] crime not enumerated in subparagraphs (A) to (O), inclusive, in which the prisoner used force or violence, or caused serious bodily injury as defined in paragraph (4) of subdivision (f) of Section 243.” Believing this language meant the prisoner used force or violence only if he caused serious bodily injury as defined, the court ruled that this provision was inapplicable. The court next considered section 2962, subdivision (e)(2)(Q), which says an offense qualifies if it is “[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 paragraph, substantial physical harm shall not require proof that the threatened act was likely to cause great or serious bodily injury.” The court found that this provision did apply: “I really find that kicking is an implied or express threat. And that kicking clearly can cause substantial physical harm.” Reverting to the language of section 2962, subdivision (e)(2)(P), however, the court also found that “he used force or violence in committing that offense.”
The court then found the other facts necessary for an extended MDO commitment. It ordered Martin committed for an additional year.
DISCUSSION
The parties’ briefs are devoted to the question of whether Martin was entitled to raise the qualifying-offense issue in the first place. The People contend that this issue was not properly before the trial court because section 2972 required the court to decide only whether the defendant has a severe mental disorder that is not in remission or cannot be kept in remission without treatment and whether he or she represents a substantial danger of physical harm to others. The People further contend that Martin is barred from raising the issue by the doctrine of res judicata because he had an opportunity to request a court hearing to challenge the findings of the Board of Prison Terms in 2006 but declined to do so, though he was represented by counsel.
Martin replies that his counsel rendered ineffective assistance in 2006 by not requesting a court hearing; he also states that if he is barred from raising the issue in this appeal, we should consider his briefs as a petition for a writ of habeas corpus, a request we granted. We do not need, however, to resolve this procedural dispute. The trial court was correct in finding that Martin committed a qualifying offense, so he is entitled to no relief regardless of the answer to the procedural question. Although the People did not brief the merits of the qualifying-offense issue, they stated in their response to the habeas petition that they did not intend to concede the point.
Martin does not argue that the trial court had insufficient evidence to find that he kicked the security guard and that the kick constituted force or violence, or that the Board of Prison Terms had insufficient evidence to make this finding. Instead, he contends that, because the kick took place after he left the store and was caught, the petty theft was completed before the force or violence began, so the crime was not one in which force or violence was used. Whether, given the undisputed facts, the kick was part of the crime or not is a question of law. We review it de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.) As we will explain, the kick was part of the crime.
The record includes the psychologist’s testimony, the probation officer’s report, and the police officer’s testimony at the 2004 preliminary hearing, all describing the crime. These descriptions are hearsay, but Martin does not claim they are inaccurate. He also does not (as he might as part of his habeas petition) ask for an opportunity to present evidence that would place the offense in a different light.
There is an arguably relevant factual question about which the parties’ positions may imply a dispute, despite their apparent agreement that the case presents questions of law only: whether Martin, having been captured and handcuffed when he kicked the guard, was still trying to retain the property. As will be seen, if an affirmative finding was required on this point, that finding is implied in the judgment; the substantial-evidence standard of review applies to it.
In any event, we do not agree with the trial court’s view that Martin’s shoplifting offense falls within section 2962, subdivision (e)(2)(Q). A kick is not a threat. We also disagree with the trial court’s view that the offense does not fall within section 2962, subdivision (e)(2)(P). The statutory language is clear that an offense qualifies if it is an offense in which the defendant used force or violence or caused serious bodily injury—not both force or violence and serious bodily injury.
We reject Martin’s argument that his offense did not qualify because he used force or violence in a struggle with the security guard after completing the theft, not in the course of getting the stolen property out the door. Our Supreme Court recently explained that a theft may not be over even though the thief has moved the property far enough to satisfy the taking element of the offense:
“We begin by considering the basic elements of theft by larceny. Larceny requires the taking of another’s property, with the intent to steal and carry it away. [Citation.] ‘Taking,’ in turn, has two aspects: (1) achieving possession of the property, known as ‘caption,’ and (2) carrying the property away, or ‘asportation.’ [Citations.] Although the slightest movement may constitute asportation [citation], the theft continues until the perpetrator has reached a place of temporary safety with the property [citation].” (People v. Gomez (2008) 43 Cal.4th 249, 254-255, fn. omitted.)
Martin had not reached a place of temporary safety. He had only made it to the parking lot, where he was immediately apprehended and brought back inside. It was then that he struggled with the security guards who stopped him. The theft was still continuing when he administered the kick.
The idea that a property crime continues until the perpetrator reaches a place of safety is most often applied in the context of robbery. People v. Estes (1983) 147 Cal.App.3d23 illustrates the point. Estes went into a Sears store, took a vest and coat off a rack, put them on, and walked out without paying. A security guard followed him to the parking lot and confronted him. Estes drew a knife, swung it at the guard, and threatened to kill him. The guard went inside and returned with the security manager. This time Estes, still holding the knife, agreed to go back in the store and admitted taking the clothes. He was convicted of robbery. (Id. at p. 26.) On appeal, he argued that the offense was not robbery—it was at most petty theft followed by a separate assault—because his use of force or fear was not contemporaneous with his taking merchandise from the store. (Id. at p. 28.) The Court of Appeal disagreed: “Appellant’s theory is contrary to the law. The crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety. It is sufficient to support the conviction that appellant used force to prevent the guard from retaking the property and to facilitate his escape.” (Ibid.)
California embraces a minority view with its doctrine that force or fear used to retain possession of property can establish robbery if the robber has not yet reached a place of safety. (2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Property, § 95, p. 127.) In People v. Gomez, supra, 43 Cal.4th at pages 255-257, the California Supreme Court reaffirmed its embrace of this view, citing People v. Estes, supra, 147 Cal.App.3d23, among other cases.
If using force against a security guard after being apprehended for shoplifting can make the offense a robbery, it can also make it a “crime … in which the [perpetrator] used force or violence” within the meaning of section 2962, subdivision (e)(2)(P). If Martin’s argument were correct, Estes could have been guilty of two offenses—a theft followed by an assault—but not a robbery, since the lapse of time between the taking and the use of force would mean the taking was not part of an offense in which force was used. California law rejects this reasoning.
Martin stresses that he was already detained—handcuffed, in fact—when he kicked the guard. If his point is that his situation was comparable to that of a perpetrator whose crime has been halted by means of an arrest by the police, we disagree. Martin was detained by security guards. Unlike police, security guards and other store employees are agents of the owners and are in constructive possession of the store’s merchandise. (People v. Estes, supra, 147 Cal.App.3dat pp. 26-27.) In other words, the security guards were in the role of “victims” defending their property, not law enforcement agents terminating the crime by arresting the perpetrator.
Alternatively, Martin’s detention could be relevant because it raises the factual question of whether Martin was still trying to escape with the property when he kicked the guard, or kicked him for some other reason such as anger or spite. If a finding that he was still trying to escape is necessary to support the judgment, we must treat the judgment as implying that finding, and we review the finding for substantial evidence. (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793; Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Substantial evidence is evidence “that is reasonable, credible, and of solid value” from which “a reasonable trier of fact could have made the requisite finding under the governing standard of proof.” (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)
The trial court could reasonably find that Martin was still using force or violence to asport the property when he kicked the security guard who was detaining him. He did not surrender all the stolen property, submit to the guards’ detention, and then become violent. To the contrary, he was still wearing the stolen shoes. People v. Pham (1993) 15 Cal.App.4th 61 is instructive in this regard. Pham stole property from the victims’ car, put it in a bag, and ran. The victims saw him, gave chase, and caught him by the shirt. Pham dropped the bag and fought. The victims subdued Pham, holding him until the police arrived. (Id. at p. 64.) The fight Pham put up satisfied the force element of robbery even though it happened after he had been seized by the victims and let the bag go. (Id. at pp. 64-65.) “The asportation continued while defendant struggled with the victims and prevented them from immediately recovering their goods.” (Id. at p. 65.) Similarly, the record here sufficiently supports a finding that Martin’s asportation of property continued while he struggled after he was handcuffed.
To summarize, the trial court found, by evidence not claimed to be insufficient, that Martin used force or violence when he kicked the guard. The evidence was sufficient to support a finding that, when he did this, his asportation of the property he stole was continuing. As a matter of law, under these circumstances, the force or violence was part of the crime, bringing the offense within the statute.
DISPOSITION
In the appeal, case No. F056365, the judgment is affirmed. The petition for writ of habeas corpus, case No. F057368, is denied.
WE CONCUR: Hill, J., Kane, J.