People v. MacAuley

Opinion

COFFEE, J.

J. — Jesus Macauley appeals from his involuntary commitment as a mentally disordered offender (MDO) under Penal Code section 2962.

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He argues that his conviction for arson of property did not qualify as an MDO offense at the time of his commitment, and that a recent amendment to the. MDO law, which enlarged the list of qualifying offenses to include arson of

[706]

property “where the act posed a substantial danger of physical harm to others,” is an ex post facto law if applied to his case. (§ 2962, subd. (e)(2)(L), amended by Stats. 1999, ch. 16, § 1.) We disagree and affirm.

Facts

Appellant used gasoline to set fire to his wife’s automobile shortly after she filed for divorce in 1991. He was convicted of arson of property under section 451, subdivision (d), and was placed on probation.

In 1995, appellant was reportedly “stalking” his ex-wife and following her in his car. She called the police and when they contacted him to investigate, they found a toy cap gun, black gloves, a pullover mask, an imitation police badge, a .357-magnum derringer, and five bullets in the car. Appellant was convicted of being a felon in possession of a firearm under section 12021, subdivision (a)(1).

Appellant’s probation in the arson case was revoked and he was sentenced to concurrent terms in state prison for the two felony offenses. While in prison, he was diagnosed with paranoid schizophrenia. He had delusions about his wife and children, about being a government agent, and about being poisoned.

Appellant was released from prison in 1996. He wrote bizarre letters to his parole officer, which led to a psychiatric evaluation. Appellant was diagnosed as suffering from a paranoid delusional disorder, and his parole was revoked due to a deterioration in his mental condition. (See

In re Naito

(1986) 186 Cal.App.3d 1656, 1661 [231 Cal.Rptr. 506].) Before his re-release on parole, the Board of Prison Terms determined that he met the MDO criteria. A court trial confirmed his status, and he was committed as an MDO in November of 1997. The court determined that his arson conviction qualified as an MDO offense because it involved “force or violence.”