Filed 3/28/13 P. v. Lowder 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B243669
                                                                            (Super. Ct. No. F475081)
     Plaintiff and Respondent,                                              (San Luis Obispo County)

v.

MICHAEL LOWDER,

     Defendant and Appellant.



                   Michael Lowder appeals from an order declaring him to be a mentally
disordered offender (MDO) and committing him to the Department of Mental Health for
treatment. (Pen. Code, § 2960 et seq.)1 He contends the evidence is insufficient to
support the trial court's finding that he presents a substantial danger of physical harm to
others. We affirm.
                            FACTS AND PROCEDURAL BACKGROUND
                   In January 2011, appellant pled guilty to the crime of stalking his ex-
girlfriend in violation of a restraining order. (§ 646.9, subd. (b).) The trial court placed
appellant on probation for a period of three years. Four days later, appellant violated
probation by filing a false police report claiming his ex-girlfriend and her boyfriend had
kidnapped him and held a gun to his head. Immediately upon his release from jail a few


1 All statutory references are to the Penal Code.
months later, he again violated probation by contacting his ex-girlfriend and vandalizing
her automobile. The trial court revoked his probation and sentenced him to three years in
state prison.
                On June 7, 2012, the Board of Prison Terms, now known as the Board of
Parole Hearings, determined that appellant was an MDO subject to involuntary treatment
as a condition of parole. Appellant petitioned for a hearing and waived his right to a jury
trial. (§ 2966, subds. (b) & (c).)
                Dr. Brandi Mathews, a psychologist at Atascadero State Hospital (ASH),
testified for the People. Dr. Mathews reviewed appellant's medical records from ASH,
including two prior MDO evaluations, a police report regarding his commitment offense,
physician progress notes, interdisciplinary notes and prior ASH medical records from
when he was committed under section 1370 in connection with his commitment offense.2
Dr. Mathews personally interviewed appellant on the day of the hearing. Based on this
information, Dr. Mathews opined that appellant met the criteria for MDO treatment.
                Dr. Mathews determined appellant suffers from a severe mental disorder, as
defined in section 2962, subdivision (a)(2). Appellant has a well-documented history of
displaying psychotic symptoms, especially paranoia, dating back at least 10 years.
During his paranoid episodes, appellant believes people are trying to kill or poison him.
For example, he thought that his ex-girlfriend, her boyfriend, a judge and an attorney
were conspiring to kill him.
                Dr. Mathews detailed the commitment offense and appellant's paranoid
ideation regarding his ex-girlfriend. On the morning of the offense, appellant called his
ex-girlfriend and said he would "eat [her] eyes out," and "wanted blood this time." Later
that day, appellant placed a dead raccoon with pantyhose around its mouth/neck on his
ex-girlfriend's car. Dr. Mathews described this behavior as "bizarre," and noted that


2 After appellant was charged with the commitment offense, the trial court found him
incompetent to stand trial. Subsequently, the court ordered appellant committed to Napa
State Hospital. In January 2011, the court found that appellant had been restored to
competency within the meaning of section 1368. (See People v. Lowder (Mar. 14, 2012,
A131829) 2012 WL 836890 [nonpub. opn.].)
                                             2
appellant was delusional and paranoid two days after the offense. Appellant
acknowledged he had ceased taking his medication weeks before the commitment
offense.
              Dr. Mathews concluded that appellant presented a substantial danger to
others due to his severe mental disorder. She explained that the disorder, which was not
in remission, was an aggravating factor when appellant threatened and stalked his ex-
girlfriend before placing the dead raccoon on her car. Appellant continued to contact his
ex-girlfriend over 25 times after he was committed to ASH, causing hospital police to
intervene. After making additional threatening comments, he was placed on one-to-one
observation for 24 hours. Appellant was psychotic when, four days after being released
on probation, he filed a false police report regarding his ex-girlfriend and her boyfriend.
When he was released again a few months later, appellant immediately violated probation
by contacting his ex-girlfriend, vandalizing her car and shattering her window. Dr.
Mathews observed that appellant lacked any insight into his mental disorder and, based
on his previous behavior, it was likely he would continue to refuse medication and poorly
perform when unsupervised in the community.
              Appellant testified that the raccoon incident occurred after a car
accidentally hit a raccoon he had been feeding. He said he wrapped a scarf around the
raccoon's mouth to stop blood from getting on his clothes. Appellant claims he was on
his way to a friend's house and had no idea his ex-girlfriend was there. When he arrived
at the house, his friend came out and started yelling at him, so he set the raccoon down on
a car that happened to belong to his ex-girlfriend. Appellant denied excessively calling
her on the telephone. He admitted he suffers from attention deficit and post traumatic
stress disorders.
              The trial court determined beyond a reasonable doubt that appellant
qualified as an MDO. The court concluded that appellant's stalking offense was a
qualifying commitment offense under section 2962, subdivision (e)(2)(Q). The court
remarked: "As the incident's been described, it would involve force or violence because
of the threatening nature. When you take into consideration the phone calls the same day

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with threats and then an animal being placed on a car where the victim is present and the
repeated behavior of continuing to contact her after that indicates, I think, a forceful type
of stalking."
                The trial court determined that appellant's severe mental disorder was not in
remission and that he poses a substantial risk of harm to others as a result of his disorder.
The court observed: "He refuses medication. He made some vague threats during his
admission and continued to try and contact the victim at least 25 times. He has not done
well on supervised release and has no insight into his mental illness."
                                        DISCUSSION
                To qualify as a commitment offense, the underlying crime must be either
enumerated in section 2962, subdivision (e)(2)(A) through (O), or fall within the catchall
provisions of subdivision (e)(2)(P) or (e)(2)(Q). (People v. Kortesmaki (2007) 156
Cal.App.4th 922, 926.) Appellant concedes, for purposes of this appeal, that his stalking
offense falls within subdivision (e)(2)(Q), which includes any 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." (See People v.
Butler (1999) 74 Cal.App.4th 557, 561-562 [stalking conviction involving threats to kill
the victim and family satisfied subdivision (e)(2)(Q)].) Appellant contends that although
his offense technically qualifies under this subdivision, the evidence of the offense and
his subsequent behavior do not support the finding that he represents a substantial danger
of physical harm to others by reason of his severe mental disorder. (See § 2962, subd.
(d).) We disagree.
                In deciding the sufficiency of the evidence, we draw all reasonable
inferences from the record to support the judgment. (People v. Ochoa (1993) 6 Cal.4th
1199, 1206.) We do not weigh the evidence or decide the credibility of the witnesses.
(Ibid.)
                An MDO commitment is authorized for a prisoner where "'. . . by reason of
his or her severe mental disorder the prisoner represents a substantial danger of physical

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harm to others . . . .'" (In re Qawi (2004) 32 Cal.4th 1, 23; § 2962, subd. (d).) Whether
the defendant meets that standard necessarily involves "a prediction of future
dangerousness by mental health professionals." (Qawi, at p. 24.)
              Dr. Mathews testified that appellant represented a substantial danger of
physical harm to others due to his severe mental disorder. In stating that opinion, Dr.
Mathews cited appellant's "bizarre" behavior in stalking his ex-girlfriend, threatening to
"eat [her] eyes out" and to get "blood this time," and then placing a dead animal on her
car. The doctor observed that appellant's psychosis and paranoia cause him to believe
people, particularly his ex-girlfriend and her boyfriend, are conspiring to kill him. Four
days after he was first released from jail, he filed a false police report claiming his ex-
girlfriend and her boyfriend had held a gun to his head. The next time he was released,
he shattered his ex-girlfriend's car window that very same day. While in custody, he
resorted to excessive telephone calls and threatening behavior. Dr. Mathews also noted
that appellant refuses to take medication to treat his symptoms and lacks insight into his
mental illness. As a qualified expert, Dr. Mathews' opinion on appellant's dangerousness
to others constitutes substantial evidence sufficient to support the trial court's finding. (In
re Qawi, supra, 32 Cal.4th at p. 24; People v. Superior Court (Williams) (1991) 233
Cal.App.3d 477, 490.)
              In challenging the finding that he represents a substantial danger of
physical harm to others, appellant refers to the lack of evidence that he has ever engaged
in any actual acts of physical, as opposed to emotional or psychological, violence against
his ex-girlfriend or any other person. Appellant's arguments in this regard essentially
ignore the applicable standard of review. Our task is to determine whether the evidence
supports the finding that appellant represents a substantial danger of physical harm to
others by reason of his severe mental disorder, and not whether there is evidence from
which the trial court could have made a contrary finding. Moreover, any inferences to be
drawn from the evidence must be made in favor of the judgment. (People v. Ochoa,
supra, 6 Cal.4th at p. 1206.)


                                              5
              The MDO law makes it clear that the determination of whether a defendant
represents a "'substantial danger of physical harm' does not require proof of a recent overt
act." (§ 2962, subd. (f).) Appellant's long history of threatening and harassing his ex-
girlfriend, including violating restraining orders and vandalizing her car, demonstrates an
inability to control his behavior without treatment. In light of this evidence, there is no
basis for us to disturb the finding that appellant represents a substantial danger of
physical harm to others, as contemplated under the MDO law.3
              The judgment (order of commitment) is affirmed.
              NOT TO BE PUBLISHED.


                                                          PERREN, J.
We concur:



              GILBERT, P. J.



              YEGAN, J.




3 Appellant cites our prior opinion in People v. Gibson (1988) 204 Cal.App.3d 1425, to
support his assertion that "section 2962 is considered a penal statute subject to applicable
state and federal constitutional safeguards." Gibson has been abrogated by statute and
overruled by case law on that point. (E.g., People v. Robinson (1998) 63 Cal.App.4th
348, 350–352.) In addition, appellant relies on Gibson for the proposition that deciding
whether a prisoner represents a substantial danger of physical harm to others for purposes
of the MDO law is "a separate and independent requirement" that can "not be based
exclusively on either the existence of the prisoner's mental illness or the role of the illness
in the underlying offense." (Emphasis omitted.) The reasoning supporting this
conclusion also has been called into question. (See Griffiths v. Superior Court (2002) 96
Cal.App.4th 757, 777–779.) In any event, Gibson does not aid appellant because the
finding that he is currently dangerous is not based solely on the existence of his mental
disorder or its role in his commitment offense.



                                              6
                                 Ginger E. Garrett, Judge

                       Superior Court County of San Luis Obispo

                            ______________________________

             Gerald J. Miller, under appointment by the Court of Appeal, for Defendant
and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Eric J. Kohm, Deputy Attorney General, for
Plaintiff and Respondent.




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