P. v. Delacruz CA2/6

Filed 4/18/13 P. v. Delacruz CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 2d Crim. No. B244124 (Super. Ct. No. F475517) Plaintiff and Respondent, (San Luis Obispo County) v. FRANCES DELACRUZ, Defendant and Appellant.

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.)1 Appellant contends that the evidence does not 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 bipolar disorder with 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 1 All statutory references are to the Penal Code unless otherwise stated. 1

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.