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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Russell ANZALONE, Defendant and Appellant.

No. B106931.

Decided: November 17, 1997

Kent Douglas Baker, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, Mitchell Keiter, Deputy Attorney General, for Plaintiff and Respondent.

We once again enter the thorny “force or violence” thicket of the mentally disordered offender (MDO) law.  (Pen.Code, § 2960 et seq., see People v. Collins (1992) 10 Cal.App.4th 690, 696-698, 12 Cal.Rptr.2d 768.) 1  “ ‘The problem ․ is one of trying to ascertain the legislative intent․’ ”  (In re Pedro T. (1994) 8 Cal.4th 1041, 1045, 36 Cal.Rptr.2d 74, 884 P.2d 1022.)

On May 9, 1994, Russell Anzalone walked into a bank and handed the teller a paper plate on which was written:  “This is a robbery, give me the money.”   Appellant told the teller to give him $20.   The teller complied and appellant left.   Appellant was convicted of second degree robbery and sentenced to prison. (§ 211.)   He appeals from the subsequent judgment entered following a court trial where he was determined to be MDO.

 Appellant contends that because he did not use a deadly or dangerous weapon during the robbery, the trial court was “statutorily barred” from finding that he was an MDO. He relies on section 2962 subdivision (e), which enumerates “crimes” which qualify for possible MDO treatment.   He correctly notes that subdivision (e)(2)(D) lists robbery as a qualifying “crime” where “․ it was charged and proved that the defendant personally used a deadly or dangerous weapon, as provided in subdivision (b) of Section 12022 ․” (§ 2962, subd. (e)(2)(D).)

Appellant acknowledges that subdivision (e)(2)(P) lists as a qualifying “crime,” “[a] crime not enumerated in subparagraph (A) to (O), inclusive, in which the prisoner used force or violence․”   He claims that the principle of expressio unius est exclusio alterius precludes interpreting this subdivision to include robberies committed without a deadly or dangerous weapon, even where “force or violence” was used.   He further claims that the statute must be construed in his favor in the event of ambiguity.   If appellant is correct, the Legislature has excluded strong arm robbery as a qualifying MDO offense.   We reject the contention for several reasons.

“Plain Meaning”

Appellant's interpretation of section 2962 subdivision (e) is contrary to the plain meaning of that statute.  “Words used in a statute ․ should be given the meaning they bear in ordinary use.  [Citations.]   If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature․”  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)

The issue tendered stems from the in artful drafting of the statute.   The Legislature has listed “crimes” but has embroidered some of them with “enhancements.”   The “crime” is robbery and the use of a weapon is an “enhancement.”   Since the Legislature has chosen to describe the “crime” with the “enhancement” in subdivision (e)(2)(D), we take the statute as we literally find it.   We also take subdivision (e)(2)(P) as we find it, i.e., it includes “crimes” not expressly and literally described in subdivision (e)(2).

Subdivision (e)(2)(P) has a broad sweep and states that with respect to a “crime” not enumerated in the preceding paragraphs, such “crime” will, nevertheless, constitute a qualifying offense if it is one where the prisoner “used force or violence.”   Appellant used “force or violence” in committing the robbery.   This strong arm robbery is not literally listed in subdivision (e)(2)(D).

“Expressio Unius”

 Expressio unius est exclusio alterius is “[a] maxim of statutory interpretation meaning that the expression of one thing is the exclusion of another.”   (Black's Law Dict. (5th ed.1979) p. 521, col. 2;  see also In re Lance W. (1985) 37 Cal.3d 873, 888, 210 Cal.Rptr. 631, 694 P.2d 744.)  “This rule, of course, is inapplicable where its operation would contradict a discernible and contrary legislative intent.  [Citation.]”   (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195, 132 Cal.Rptr. 377, 553 P.2d 537.)  “The primary purpose of the [MDO] legislation is to protect the public.”  (People v. Gibson (1988) 204 Cal.App.3d 1425, 1433, 252 Cal.Rptr. 56.)   Application of expressio unis est exclusio alterius would not serve legislative intent.   It would frustrate legislative intent.

Absurd Result

 “ ‘The literal meaning of the words of a statute may be disregarded to avoid absurd results․' ”  (County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 849, fn. 6, 59 Cal.Rptr. 609, 428 P.2d 593;  Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1698, 8 Cal.Rptr.2d 614.)   Here, if the two subdivisions of section 2962 can be read as excluding strong armed robbery as a qualifying MDO offense, an absurd result would follow.   We simply cannot believe that the Legislature has drawn such a line allowing a “strong arm” robber to escape the reach of the MDO law.

Favorable Construction Rule

 We acknowledge that the MDO scheme has “overwhelming penal attributes.”  (People v. Gibson, supra, 204 Cal.App.3d at p. 1432, 252 Cal.Rptr. 56.)  “[I]t is the policy of this state to construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit;  just as in the case of a question of fact, the defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute.'  (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631 [87 Cal.Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420];  see also In re Pedro T., supra, 8 Cal.4th at p. 1046 [36 Cal.Rptr.2d 74, 884 P.2d 1022].)”  (People v. Alberts (1995) 32 Cal.App.4th 1424, 1427, 37 Cal.Rptr.2d 401.)  “This rule is but a variation of the maxium of jurisprudence which we here utilize:  ‘Interpretation must be reasonable.’  [Citation.]”  (People v. Buena Vista Mines, Inc., (1996) 48 Cal.App.4th 1030, 1036, 56 Cal.Rptr.2d 21.)   We give appellant the benefit of every reasonable doubt as to the construction of the statute.   But, again, if the two subdivisions of section 2962 can be read as excluding strong arm robbery as a qualifying MDO offense, such interpretation would be unreasonable.

Evidence of Force or Violence

 Appellant's contention that the evidence does not show that he used “force or violence” in committing the robbery is without merit.   Appellant claims that he never “touched, scared, harmed, or threatened the teller.”   He claims that the word “force” as used in the statute is synonymous with “unwarranted violent coercion or violent touching.”

As we explained in People v. Pretzer (1992) 9 Cal.App.4th 1078, 1082-1083, 11 Cal.Rptr.2d 860, the word “force” is not synonymous with “violence.”   It is not limited to applications of physical power, such as bludgeoning the victim.   Instead, force may be found where the defendant's actions cause the victim's resistance to be involuntarily overcome.  (Ibid.) In Pretzer, we upheld the trial court's determination that the defendant used force or violence in falsely imprisoning certain hospital employees.   He wielded a plastic razor, pretended to be armed, and forced the employees to give him drugs.   Noting that the defendant's actions “could have invited resistance or escape with possible resulting injury to the employees, hospital patrons or Pretzer ․” (id. at p. 1083, 11 Cal.Rptr.2d 860), we concluded that the requisite “force” had been used.

Similarly, appellant used “force” when he walked into the bank, stated that it was a robbery, and demanded money from the teller.   We agree with the trial judge who remarked:  “The use of the term ‘this is a robbery’ is something different than saying ‘I am homeless.   I need money’ or something like that.   It implies a menace.   It implies force and violence․”   As in Pretzer, appellant's action easily could have invited resistance with resulting injury to the bank employees, patrons or appellant.

Psychiatric Reports

 Finally, we reject appellant's contention that the trial court improperly relied upon inadmissible medical evidence.   Appellant relies on the reporter's transcript where the trial court said that it had reviewed the reports of “Dr. Vernon” and “Dr. Milton.”   Appellant correctly notes that the only written reports admitted into evidence were those of Doctor Berning, Doctor Knowlton, and Doctor Flavan.

We agree with respondent that the references that appear in the reporter's transcript to the reports of “Dr. Vernon” and “Dr. Milton” were inadvertent and were, instead, intended to be references to the reports filed by “Dr. Berning” and “Dr. Knowlton” whose respective names sound similar.   For example, the trial court, purporting to rely on the report of “Dr. Vernon” quoted directly from Doctor Berning's report.   The trial court's description of the respective reports of “Dr. Vernon” and “Dr. Milton” coincided with the findings found in the respective reports of Doctor Berning and Doctor Knowlton.   Apart from the reports of Doctors Vernon and Milton, substantial evidence supports the trial court's determination that appellant met all the MDO criteria.   (People v. Miller (1994) 25 Cal.App.4th 913, 919-920, 31 Cal.Rptr.2d 423.)

The judgment (order of commitment) is affirmed.


1.   All further statutory references are to the Penal Code.

YEGAN, Associate Justice.

STONE (S.J.), P.J., and GILBERT, J., concur.

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