P. v. Hilger

Filed 8/7/07 P. v. Hilger 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Alexander Hilger appeals an order recommitting him to the Department of Mental Health (DMH) for treatment as a mentally disordered offender (MDO) (Pen. Code, 2962).^[1] He contends the evidence is insufficient to support the finding that his commitment offense of possessing a concealed dirk or dagger ( 12020) involved an express or implied threat of force or violence, as contemplated by subdivision (e)(2)(Q) of section 2962. We affirm.

FACTS AND PROCEDURAL HISTORY

On January 15, 2002, Hilger was convicted of assault with a deadly weapon and was sentenced to four years in state prison. He was paroled on December 5, 2003, on the condition that he accept treatment through the DMH. On January 7, 2004, he was arrested and subsequently pleaded guilty to possessing a concealed dirk or dagger, namely, a kitchen knife. On July 5, 2005, the Board of Prison Terms (BPT) determined that Hilger met the criteria of section 2962. After a hearing, the court found that Hilger met the criteria and ordered him committed for treatment.

Hilger appealed, contending that the evidence was insufficient to support the finding that his commitment offense of possessing a dirk or dagger involved an implied threat of force or violence, as contemplated by section 2962, subdivision (e)(2)(Q). We rejected that contention, and affirmed the order of commitment in an opinion filed on June 28, 2006.^[2]

On August 25, 2006, the BPT ordered that Hilger continue to receive treatment as a condition of parole. Hilger petitioned for a hearing, which was held on November 15, 2006. He waived his right to a jury trial. Dr. William Walters, Hilger's treating physician, testified that Hilger suffers from schizoaffective disorder and exhibited symptoms of irritability, paranoia, aggression, and "verbal dyscontrol." Dr. Walters also opined that Hilger's severe mental disorder was not in remission, and that as a result of his disorder he represented a substantial danger of physical harm to others. The doctor testified that from the time he began treating Hilger in November 2005, "[t]here were weekly events of verbal altercations and near physical violence because he would accuse people of doing things to his peers and the staff and so on, so it would lead to an escalating series of violent like scenarios. I will say he's better now and he's clearly better right now, but over the course of the year there must have been 20 or 30 events that could have led to physical violence."

In forming his opinions, Dr. Walters also relied in part on the facts of Hilger's commitment offense under section 12020, which he recounted as follows: The police were summoned to a supermarket where a visibly intoxicated Hilger was aggressively panhandling. When the officers contacted him, he told them he had a steak knife in his back pocket to protect himself against "tweekers." Hilger gave the officers consent to search him, and the knife was retrieved. He thereafter resisted arrest and attempted to spit on the officers. Dr. Walters also noted that Hilger had committed a battery on other officers in December 2003, and that he was the aggressor in a physical altercation in December 2005.

At the conclusion of the hearing, the court found that Hilger met the MDO criteria for purposes of continued treatment and accordingly ordered him committed to DMH for continued treatment. Hilger appeals.

DISCUSSION

Hilger's sole contention on appeal is that the evidence is insufficient to support the finding that his commitment offense of possessing a concealed dirk or dagger involved the use of force or violence, as contemplated by section 2962, subdivision (e)(2)(Q). The People correctly respond that this finding was not at issue because Hilger's commitment was for continued treatment under section 2972. Moreover, the claim is barred by the doctrines of res judicata and collateral estoppel.

"The six criteria for the initial [MDO] commitment are: (1) the prisoner has a severe mental disorder; (2) he used force or violence in committing the underlying offense; (3) his severe mental disorder was a cause or aggravating factor in his commission of that offense; (4) the disorder is not in remission or capable of being kept in remission without treatment; (5) he was treated for the disorder for at least 90 days in the year prior to his parole; and (6) as a result of his disorder, he represents a substantial danger of physical harm to others. ( 2962.) For continued treatment, the court must find (1) that the parolee has a severe mental disorder; (2) that the disorder is not in remission or cannot be kept in remission without treatment; and (3) that the parolee represents a substantial danger of physical harm to others by reason of the disorder.

( 2972, subd. (c).)" (People v. Merfield (2007) 147 Cal.App.4th 1071, 1075, fn. 2.) "Three of the original criteria 'concern past events that once established, are incapable of change[.]' [Citation.] By contrast, the other three criteria are based on evidence as it existed at the time of the BPT's initial commitment hearing or the annual review hearing continuing that commitment--namely, whether the prisoner is currently suffering from a severe mental disorder, whether that disorder is not in remission or cannot be kept in remission without treatment, and whether he presently represents a substantial danger of physical harm to others by reason of that disorder. [Citations.] []  The practical effect of this distinction is that the three criteria concerning past events need only be proven once, while the BPT must find that the parolee meets the other three criteria at the time of the annual hearing in order to continue treatment for an additional year. 'Under the doctrines of res judicata and collateral estoppel, issues relating to the three criteria concerning past events that have been litigated in an MDO proceeding cannot be relitigated in a subsequent proceeding. [Citation.]' [Citation.]" (Id., at p. 1075.)

Hilger's appeal is from an order for continued treatment. In issuing that order, the court did not have to find that Hilger's commitment offense involved the use of force or violence. ( 2972, subd. (c).) Moreover, that determination relates to past events that were litigated in the prior proceeding challenging the initial commitment order. Relitigation of the issue is thus barred by res judicata and collateral estoppel. (People v. Merfield, supra, 147 Cal.App.4th at p. 1075.)

Hilger's attempt to avoid the preclusive effect of the prior finding that his commitment offense involved the use of force or violence is unavailing. The issue is not, as he claims, whether the law of the case doctrine applies to a claim that was not actually litigated in the prior proceeding. Regardless of whether it does, res judicata bars any matters that could have been litigated in the prior proceeding, not only those that were actually litigated. (People v. Merfield, supra, 147 Cal.App.4th at pp. 1075-1076.)

To the extent Hilger argues that his appellate attorney in the prior proceeding provided ineffective assistance of counsel by failing to raise the precise issue he purports to raise now, we reject that contention. In his appeal from the initial commitment order, Hilger contended that his commitment offense of possessing a concealed dirk or dagger did not qualify as a crime of force or violence under the MDO statute's "catch-all" provision, which provides that a qualifying offense 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." ( 2962, subd. (e)(2)(Q).) Specifically, he argued that the offense did not qualify him as an MDO under that statute because there was no evidence that he used the weapon he possessed in a threatening or violent manner. We disagreed, based on our Supreme Court's holding in an analogous context, that possession of a concealed dirk or dagger qualified as an offense involving an implied threat of force or violence regardless of the fact that the defendant did not use the weapon in a threatening or violent manner when it was discovered in his possession. (People v. Ramirez (1990) 50 Cal.3d 1158, 1186-1187.) We further concluded that Hilger's intent to use the knife found in his possession as a weapon did not have to be established because section 12020 is a general intent crime. (People v. Rubalcava (2000) 23 Cal.4th 322, 330.)

According to Hilger, counsel should have further argued that "because the present offense involved a concealed dagger, whose presence was not known to others, the weapon was not possessed 'in such a manner that a reasonable person would believe and expect that the force or violence would be used,' as required by section 2962, subdivision (e)(2)(Q)." He reasons that "[u]nder such circumstances, the hypothetical 'reasonable person' is, by definition, unaware of the weapon, and the resulting threat to his or her safety. As such, there can be no expectation, reasonable or otherwise, that the possession of the concealed weapon would result in the use of force or violence."

Assuming that Hilger's statement of the law is correct, the record belies his assertion that no one was aware that he was in possession of a weapon. As stated in our prior opinion and recounted by Dr. Walters, the police contacted Hilger in front of a supermarket in response to complaints that he was aggressively panhandling. Hilger, who was visibly intoxicated, told the police he had a steak knife in his back pocket for protection. This evidence, viewed in the light most favorable to the judgment, is sufficient to sustain the finding not only that Hilger's possession of the knife involved an implied threat of force or violence, but also that a reasonable person in the officers' position would believe and expect that such force or violence would be used. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083.)

The judgment (order of commitment) is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Michael L. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Lance E. Winters, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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^[1] Further statutory references are to the Penal Code.

^[2] The People's request for judicial notice of our opinion in the prior appeal is granted.