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

The PEOPLE, Plaintiff and Respondent, v. Jesus MACAULEY, Defendant and Appellant.

No. B118285.

Decided: December 23, 1998

Jerry D. Whatley, under appointment by the Court of Appeal, Santa Barbara, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Allison Ting, Supervising Deputy Attorney General, Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.

Jesus Macauley appeals from his involuntary commitment as a mentally disordered offender (MDO) under Penal Code section 2962.1  He argues that he may not be confined as an MDO because his conviction for arson of property did not involve “force or violence” under section 2962, subdivision (e)(2)(P).   We affirm.


Appellant set fire to his wife's automobile shortly after she filed for divorce in 1991.   He was convicted of arson of property and placed on probation.  (§ 451, subd. (d).)

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.  (§ 12021, subd. (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Appellant's probation in the arson case was revoked and he was sentenced to concurrent terms in state prison for the two felony offenses.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, appellant was diagnosed as suffering from 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   Appellant was diagnosed as suffering from a paranoid delusional disorder, and his parole was revoked due to a deterioration in his mental condition.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.2

At appellant's MDO court trial, defense counsel argued that the conviction for arson of property did not involve “force or violence” and thus did not qualify as an MDO offense.3  (§ 2962, subds. (d)(1), (e)(2).)   The trial court concluded that appellant met the requirements of the statute beyond a reasonable doubt.


 Appellant claims his conviction for arson of property does not meet the statutory criteria because it is not specifically enumerated in the MDO statute and is not a crime of “force or violence.”   Having considered the plain language of section 2962 and recent amendments to that provision, we disagree.

Section 2962, subdivision (e) originally defined an MDO offense as “a crime in which the prisoner used force or violence, or caused serious bodily injury as defined in paragraph (5) of subdivision (f) of Section 243.”  (Former § 2962, subd. (e), Stats.1986, c. 858, § 2, amended by Stats, 1989, c. 228, § 1.) The statute did not define “force” or “violence,” opening those terms to judicial interpretation.

Our first occasion to engage in this task came in People v. Pretzer (1992) 9 Cal.App.4th 1078, 1082, 11 Cal.Rptr.2d 860.   There we rejected the defendant's argument that “force” was synonymous with “violence,” and required the application of physical power.   The defendant in Pretzer was convicted of false imprisonment after restraining three animal hospital employees by pretending that a plastic razor blade was a gun.   We concluded that he had used force within the meaning of section 2962, subdivision (e):  “Although Pretzer may not have directly applied physical power against the hospital employees, his behavior in pretending to be armed posed a danger to them.   Pretzer's acts could have invited resistance or escape with possible resulting injury to the employees, hospital patrons or Pretzer.   We believe the Legislature meant ‘force’ to have a broad meaning and to encompass such circumstances as these.”  (Id. at p. 1083, 11 Cal.Rptr.2d 860.)

In People v. Collins (1992) 10 Cal.App.4th 690, 697, 12 Cal.Rptr.2d 768, we concluded that “force” and “violence” should be given their ordinary meanings when construing the statute.   We also expressed concern that the common meaning of “force” was incompatible with the apparent legislative intent behind the MDO law.  “[T]he use of the word ‘force’ does not necessarily mean force against a person and may theoretically be based upon a crime which entails the use of force on property, e.g., forced entry of a dwelling to commit a residential burglary․  [¶] ․ The Legislature may wish to amend the definition of what qualifies as an underlying offense.   Our reading of the [legislative] materials leads us to suggest that the Legislature may have had in mind those offenses specified in section 667.5, subdivision (c)․”  (Id. at pp. 697-698, 12 Cal.Rptr.2d 768.)

The Legislature passed Senate Bill 34 in 1995, which added a list of specific MDO offenses to section 2962, subdivision (e).  (§ 2962, subd. (e)(2)(A)-(e)(2)(O), amended by Stats.1995, ch. 761, § 1 (Sen. Bill No. 34).)   Arson of property under section 451, subdivision (d) is not one of these enumerated offenses.4  The amended version of the statute alternatively defines an MDO offense as, “A crime not enumerated ․ in which the prisoner used force or violence, or caused serious bodily injury․”  (§ 2962, subd. (e)(2)(P).)   The amendment did not define “force” or “violence.”

The 1995 amendment expanded the number of qualifying MDO offenses, rather than narrowing it to include only violent felonies under section 667.5, subdivision (c), as suggested in Collins.   The amendment eliminates the need to independently prove force, violence or serious bodily injury when the defendant has been convicted of an enumerated crime.   But crimes which would have been treated as MDO offenses under the previous version of the statute will still fall under the catch-all provision of section 2962, subdivision (e)(2)(P).

Appellant claims he did not use force when committing the arson because there is no proof that the crime posed a danger to others.   We disagree.   The record reveals that he poured gasoline over his wife's car and set it on fire while it was parked “very close” to the house where her boyfriend lived and where she was staying.   Appellant set the fire with the hopes of luring his wife outside.   The fire caused about $2,000 worth of damage to the car.   An arson expert testified that car fires are inherently dangerous because they can get out of control very quickly and the flammable liquids create a risk of explosion.   We can readily infer that such a fire would draw the attention of bystanders and firefighters, and pose a danger to the occupants of nearby structures, including appellant's wife.

Our cases interpreting the former version of section 2962 concluded that “force” does not require the application of physical power against a person.   A criminal act which invites resistance or escape may suffice.  (People v. Pretzer, supra, 9 Cal.App.4th at p. 1083, 11 Cal.Rptr.2d 860.)   We have also stated that the term “force” is broad enough to include force against property.  (People v. Collins, supra, 10 Cal.App.4th at p. 697, 12 Cal.Rptr.2d 768;  see also People v. Bravot (1986) 183 Cal.App.3d 93, 97, 227 Cal.Rptr. 810 [statute punishing escape with force and violence includes application of force against property].)

Based on these precedents, we hold that using gasoline to set fire to an automobile in a residential area is sufficient force to qualify as an MDO offense.   It “invites resistance or escape with possible resulting injury” (People v. Pretzer, supra, 9 Cal.App.4th at p. 1083, 11 Cal.Rptr.2d 860), and it involves the application of substantial force to property in a manner which creates a danger to persons in the area.  (See People v. Collins, supra, 10 Cal.App.4th at p. 697, 12 Cal.Rptr.2d 768.) 5

 When the Legislature amended section 2962 in 1995, it did not attempt to narrow the definition of force set forth in Pretzer and Collins, even though the digest of Senate Bill No. 34 explains that the amendments were in part a response to Collins.  “In People v. Collins ․ the court suggested that the Legislature may wish to amend the definition of what qualifies as an underlying offense.  [¶] This bill ․ would add specific offenses, similar to the violent felony list, which would meet the “force and violence” definition without the necessity of proof of that fact.  [¶] ․ [¶] In addition, the current statutory provision of eligibility based on a crime of force, violence or causation of serious bodily injury would remain intact.”  (Sen. Bill No. 34 Third Reading Digest, as amended May 1, 1995.)   When the Legislature amends a statute without altering portions of the provision that have been judicially construed, it must be presumed that the Legislature was aware of the previous judicial construction and approved of it.  (See, e.g., In re Gladys R. (1970) 1 Cal.3d 855, 868-869, 83 Cal.Rptr. 671, 464 P.2d 127;  People v. Lewis (1993) 21 Cal.App.4th 243, 249, 25 Cal.Rptr.2d 827.)   We presume the Legislature is satisfied with the judicial construction of “force” set forth in Pretzer and Collins.

The judgment is affirmed.


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

2.   Section 2962, subdivisions (a) through (e), provides that the following criteria must be met for MDO certification:  (1) the prisoner has a severe mental disorder, which is not in remission or cannot be kept in remission without treatment;  (2) the disorder was one of the causes of or was an aggravating factor in the prisoner's commission of his crime;  (3) the prisoner has been in treatment for the disorder for 90 days or more prior to his parole release date;  (4) the prisoner was convicted of an enumerated offense or one in which he used force or violence or caused serious bodily injury;  and (5) by reason of the disorder the prisoner represents a substantial danger of physical harm to others.  (See People v. White (1995) 32 Cal.App.4th 638, 641, 38 Cal.Rptr.2d 267.)

3.   The prosecution did not argue that appellant's conviction under section 12021, subdivision (a) (possession of firearm by felon) qualified as an MDO offense.

4.   The crimes listed as MDO offenses in section 2962, subdivision (e)(2) are voluntary manslaughter;  mayhem;  kidnapping;  robbery or carjacking accompanied by a deadly weapon use enhancement;  forcible rape, sodomy, oral copulation, or penetration with a foreign object;  lewd acts on a child under 14 years;  continuous sexual abuse;  arson causing great bodily injury under section 451, subdivision (a);  any felony where a firearm use enhancement was found true;  explosion of a destructive device;  and attempted murder.   Not all of these crimes and descriptions of criminal conduct qualify as violent felonies under section 667.5, subdivision (c).

5.   In People v. Collins, supra, 10 Cal.App.4th at pp. 697-698, 12 Cal.Rptr.2d 768, we stated that the “force” necessary for an MDO offense might be directed against property rather than persons, and cited as an example the forced entry of a dwelling to commit a residential burglary.   The main purpose of the MDO law is the protection of public safety.   (People v. Pretzer, supra, 9 Cal.App.4th at p. 1082, 11 Cal.Rptr.2d 860.)   Arson is a crime against property which threatens the physical safety of persons as well as the property itself.   The same is true of some residential burglaries, the hypothetical noted in Collins.   We do not suggest that a crime of force which threatens only property (e.g., felony vandalism) would qualify as an MDO offense.


STEVEN J. STONE, P.J., and YEGAN, J., concur.

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