Filed 3/28/19

                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


THE PEOPLE,                             2d Crim. No. B289648
                                     (Super. Ct. No. 18PT-00224)
     Plaintiff and Respondent,        (San Luis Obispo County)

v.

DONALD FINCH WARREN,

     Defendant and Appellant.



      Donald Finch Warren appeals the trial court’s order
declaring him a mentally disordered offender (MDO) and
committing him to the Department of Mental Health for
treatment. (Pen. Code, § 2962, et seq.) 1 Appellant contends the
evidence is insufficient to support the finding that his
commitment offense, felony indecent exposure (§ 314), involved
an express or implied threat of force or violence likely to produce




      All statutory references are to the Penal Code unless
        1

otherwise stated.
substantial physical harm, as contemplated in section 2962,
subdivision (e)(2)(Q). We agree and reverse. 2
             FACTS AND PROCEDURAL HISTORY
        In 2013, appellant was convicted of possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and
was sentenced to 32 months in state prison. He was scheduled to
be released on parole in November 2017. While serving his
sentence in San Diego County, he was charged in a January 2014
rules violation report (RVR) with violating prison rules by
committing the offense of felony indecent exposure (§ 314, subd.
(1)). 3 The matter was referred to the San Diego County District
Attorney for possible investigation and prosecution (Cal. Code
Regs., tit. 15, § 3316, subd. (a)). Pursuant to appellant’s request,
his RVR disciplinary hearing was postponed pending the outcome
of the referral for criminal prosecution. (Id., subd. (c).)
        In November 2014, appellant was convicted in San Diego
County Superior Court of felony indecent exposure and was
sentenced to an additional and consecutive 32-month prison

      2In light of our conclusion, we need not address appellant’s
alternative contention that the evidence is insufficient to support
the finding that he represents a substantial danger of physical
harm to others by reason of his severe mental disorder (§ 2962,
subd. (d)(1)).

      3 An RVR is issued to document serious inmate misconduct
that is a violation of law or is not minor in nature. (In re Gray
(2007) 151 Cal.App.4th 379, 389.) An RVR triggers certain
procedural protections and can result in various forms of
discipline for the offending inmate. (See Cal. Code Regs., tit. 15,
§§ 3313-3316.) The offense of felony indecent exposure
constitutes a serious violation of the rule that inmates shall not
engage in illegal sexual acts. (Id., § 3007.)


                                 2
term. In April 2015, following his RVR disciplinary hearing, he
was found guilty of violating prison rules by committing the
felony indecent exposure offense. He was scheduled to be
released on parole in November 2017.
       In September 2017, the Board of Prison Terms determined
that appellant met the MDO criteria and sustained the
requirement of treatment as a condition of his parole. Appellant
petitioned for a hearing pursuant to section 2966, subdivision (b).
Counsel was appointed to represent him and he waived his right
to a jury trial.
       Dr. Angie Shenouda, a forensic psychologist at Atascadero
State Hospital, testified at the hearing. After interviewing
appellant and reviewing his records, Dr. Shenouda opined that he
suffers from a severe mental disorder, i.e., schizoaffective bipolar
type. His symptoms include auditory hallucinations, self-
harming behaviors, and hypersexuality. The doctor also
concluded that appellant’s mental disorder was a cause or
aggravating factor in his commission of the commitment offense,
that his disorder was in remission but could not be kept in
remission without treatment, and that by reason of his disorder
he represented a substantial danger of physical harm to others.
       To prove that appellant’s commitment offense of felony
indecent exposure qualified him for MDO treatment, the People
offered copies of his CLETS 4 report and the RVR regarding the




      4CLETS is an acronym for California Law Enforcement
Telecommunications System, a Department of Justice computer
system that reports criminal history information. (People v.
Martinez (2000) 22 Cal.4th 106, 113.)


                                 3
offense. 5 The CLETS report includes appellant’s 2014 conviction
of the current offense, and his prior convictions in 2003 on one
misdemeanor count of indecent exposure (§ 314) and two counts
of committing a lewd act on a child under the age of 14 (§ 288,
subd. (a)).
       In the RVR, female Correctional Officer M.M. reported:
“On Friday January 31, 2014 at approximately 0713 hours while
performing my duties as housing unit 15 control officer, I
released all the inmates from the unit for breakfast. I observed
[appellant] remaining in the unit standing at the urinal behind
the podium continuously staring at me. I gave [appellant] an
order to exit the unit and he complied. As he entered the sally
port he completely stopped directly beneath me looking up at my
crotch through the control booth window. He proceeded to
breakfast. [¶] At approximately 0755 hours while releasing
morning medication I opened cells 201 through 209. [Appellant]
exited cell 204 completely naked. Utilizing his right hand
holding his erect penis stroking it back and forth while directly
looking at me. I contacted Officer Strong to respond to the area.
Officer Strong observed [appellant] masturbating and gave him a

      5 The evidence was offered pursuant to subdivision (f) of
section 2962, which states in pertinent part: “[T]he existence or
nature of the crime, as defined in paragraph (2) of subdivision (e),
for which the prisoner has been convicted may be shown with
documentary evidence. The details underlying the commission of
the offense that led to the conviction, including the use of force or
violence, causing serious bodily injury, or the threat to use force
or violence likely to produce substantial physical harm, may be
shown by documentary evidence, including, but not limited to,
preliminary hearing transcripts, trial transcripts, probation and
sentencing reports, and evaluations by the State Department of
State Hospitals.”


                                  4
direct order to stop and step inside his assigned cell and I closed
the cell door. I notified Sergeant Wall of the incident and yard
staff cuffed and escorted [appellant] out of the unit. I fear for my
safety with him on the yard, due to his stalking behavior. His
progression from stalking to masturbating directly at me leads
me to fear he may take it further. I was offered EAP [Employee
Assistance Program] which I declined.”
       The RVR also refers to an incident report in which
Correctional Officer Strong stated: “On Friday January 31, 2014
at approximately 0713 hours while performing my duties as
Housing Unit Floor Officer and monitoring the morning chow
release I observed [appellant] at the urinal in B section behind
the podium. Using [t]he P/A . . . Correctional Officer [M.M.], [the]
Housing Unit 15 control [b]ooth [o]fficer, prompted [appellant] to
exit the building. [Appellant] complied. While exiting the
Housing Unit I observed [appellant] stopped in the sally port
looking straight up peering in the control booth, pausing for
approximately 2-3 seconds then continuing on his way to chow.
At approximately 0755 [h]ours while monitoring the morning
medication release, Correctional Officer [M.M.] opened the last
section for meds . . . . Correctional Officer [M.M.] notified me via
the P/A [s]ystem stating ‘check out 204[.’] I walked from the
podium area behind the desk out to A-Section Dayroom by the
T.V[.] area benches and I observed [appellant] standing on the
tier in front of his cell staring in the direction of the control booth
and using his right hand stroking his penis. I ordered [appellant]
to stop and step back into his cell. [Appellant] complied.”
       At the MDO hearing, the trial court asked the prosecutor to
explain his theory that appellant’s offense of felony indecent
exposure was a qualifying offense under the MDO law. The




                                  5
prosecutor offered that “[t]he actions of the patient [sic] were
obviously very threatening to [Officer M.M.]” as reflected in the
RVR. The court responded, “Standing there naked and
masturbating.” The prosecutor replied, “It sounds kind of
threatening to me, your Honor. She indicates her fear in that,
your Honor, too.”
       In testifying at the hearing, appellant denied exposing
himself to Officer M.M. and denied he had ever stared at the
officer or tried to intimidate her. Appellant also asserted that
when the alleged incident occurred, Officer M.M. “was 50 feet
away from me inside a secure location where they have a
switchboard for operating the mechanics of the doors to the
cell[s].” He acknowledged that about two weeks prior to the
incident, another officer had accused him of looking up at Officer
M.M.’s crotch as she stood in the guard tower. He also surmised
that although the other inmates were unaware of his prior
criminal history, his prior offenses were “common knowledge”
among the correctional staff.
       The prosecutor argued that the proffered evidence “makes
it very clear that this woman correctional officer was in a position
to see this as stalking behavior and an acceleration of activity.”
The prosecutor added that “[appellant] did admit that the staff
was aware of this past sexual situation. And it seems to me that
makes the fear of this female correctional officer all the more
reasonable. And when the court fits this in with the testimony of
Dr. Shenouda and the totality of circumstances here, your Honor,
there is no reasonable doubt. All [MDO] criteria are met.”
       Defense counsel replied that “[the prosecution] is relying on
[section 2962, subdivision (e)(2)(Q)], which reads: ‘A crime in
which the perpetrator expressly or impliedly threatened another




                                 6
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.’
Now, we’re talking about someone 50 feet away in a secluded,
closed room of some sort. It strains the bounds of credulity to put
logic behind that.” Counsel went on to add that “even if you take
two separate instances, one where he supposedly is staring at her
up in this booth that she’s in; or, comes out of his cell naked, how
is that a threat to her? How is that a threat of force or violence?
I don’t see it. I think it’s ridiculous.”
       The prosecutor countered that “sexual assault is a crime of
force or violence,” Officer M.M. “was aware of [appellant’s] past,”
and that “[t]he circumstances of the offenses are ones that any
reasonable person would be in subjective and objective fear.”
Defense counsel then reiterated, “[H]ow do you threaten
somebody from 50 feet away on a different tier?”
       The court responded: “Well, you are showing the woman
your -- what organ you are going to use on her. I mean, most
reasonable women are really bothered by guys that expose
themselves in a masturbating way because it portrays to them
that he wants to use his organ on them. Now, the guys might
think, well, that’s a pretty stupid way to attract a woman, if that
was it. Or is he just pleasuring himself because there’s a female
in the vicinity? So, under the circumstances and in the way she
wrote up the [RVR], she was obviously afraid by what she saw.
Above and beyond the fact that he happened to be standing
outside naked and masturbating based [on] his staring, his
watching, his looking, et cetera. She refers to being on the yard,
probably not the only place that a correctional officer is in [is] a
booth. So I’m satisfied that [section 2962, subdivision (e)(2)(Q)]




                                 7
was met here. And that a reasonable woman would believe that
force or violence would be used on her, not in that exact moment,
but it’s an implied threat.”
       The court went on to find that “[t]he other [MDO] criteria
are met. He can’t be kept in remission. He’s a dangerous guy
because he’s hypersexual and he’s bipolar . . . . And if he can’t
control it in a secure setting, I’m worried about him out there in
an unsecured setting. And so I find that . . . all criteria were met.
His petition is denied.”
                            DISCUSSION
       Appellant contends the evidence is insufficient to support
the finding that his commitment offense of felony indecent
exposure (§ 314) involved an express or implied threat to use
force or violence (§ 2962, subd. (e)(2)(Q)). We agree.
       “The substantial evidence rule applies to appellate review
of the sufficiency of the evidence in MDO proceedings. [Citation.]
We review the record in the light most favorable to the judgment
to determine whether it discloses substantial evidence—‘evidence
that is reasonable, credible, and of solid value’—such that a
reasonable trier of fact could find beyond a reasonable doubt that
the commitment offense was a qualifying offense under the MDO
statute. [Citation.]” (People v. Labelle (2010) 190 Cal.App.4th
149, 151.)
       To commit appellant for MDO treatment as a condition of
his parole, the trial court had to find beyond a reasonable doubt
that the offense for which he was sentenced to prison—felony
indecent exposure—is a qualifying offense. (§ 2962, subd. (e).) As
relevant here, a person is guilty of misdemeanor indecent
exposure if he “willfully and lewdly . . . [¶] 1. Exposes his person,
or the private parts thereof, in any public place, or in any place




                                 8
where there are present other persons to be offended or annoyed
thereby . . . .” (§ 314.) The crime becomes a felony where, as
here, the defendant has a prior conviction for indecent exposure
under subdivision (1) of section 314, or a prior conviction for
committing a lewd act on a child under the age of 14 in violation
of section 288. (Ibid.)
       The trial court found that appellant’s felony indecent
exposure offense qualified him for MDO treatment because it was
“[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).) In making this
finding, the court primarily relied on Officer M.M.’s statements
that “I fear for my safety with [appellant] on the yard, due to his
stalking behavior” and that “[h]is progression from stalking to
masturbating directly at me leads me to fear he may take it
further.”
       Appellant’s conviction of felony indecent exposure, however,
does not encompass the alleged “stalking behavior” he exhibited
prior to his commission of the offense. As we have previously
recognized, “other crimes the prisoner may have committed in
perpetrating the commitment offense are irrelevant to the
determination whether that offense meets the criteria for MDO
treatment.” (People v. Kortesmaki (2007) 156 Cal.App.4th 922,
926-927, citing People v. Green (2006) 142 Cal.App.4th 907, 913.)
       In any event, the evidence is insufficient to prove that
appellant’s felony indecent exposure offense involved a threat to
use force or violence likely to produce substantial physical harm.
Appellant walked out of his cell naked and masturbated while




                                9
looking at a female correctional officer who stood a substantial
distance away from him in a secure location. Earlier that
morning, he was twice seen briefly staring at the same officer.
On each occasion, he was ordered to cease his offensive behavior
and he immediately complied. Moreover, there is no evidence
that appellant ever attempted to make physical contact with
Officer M.M. or that he exhibited aggressive, forceful, or violent
behavior toward her or anyone else.
       In arguing below that appellant’s offense involved a threat
to use force or violence, the prosecution speculated that Officer
M.M. was aware of appellant’s prior convictions under section
288 and offered that “sexual assault is a crime of force or
violence.” But nothing in the record indicates that appellant’s
prior sex offenses involved the use of force or violence or a threat
to use force or violence. Both of his prior convictions were under
subdivision (a) of section 288. Although a conviction under
subdivision (b) of the statute necessarily includes a finding that
the defendant used or threatened to use force or violence, no such
finding is required for a conviction under subdivision (a).
       Moreover, there is nothing else in the record to suggest—
much less prove beyond a reasonable doubt—that appellant
threatened Officer M.M. with the use of force or violence likely to
produce substantial physical harm. In finding otherwise, the
trial court emphasized Officer M.M.’s statement that as a result
of appellant’s conduct, she feared for her future safety “on the
yard.” But the officer’s stated fear of appellant, even if
objectively reasonable, does not help establish that he actually
threatened to use force or violence against her at some
unspecified time in the future.




                                10
       The trial court nevertheless reasoned that appellant
intended to convey such a threat to Officer M.M. because men
who expose themselves in the manner he did “are showing the
woman . . . what organ you are going to use on her.” The court
also acknowledged, however, that men who commit such acts
may “just [be] pleasuring [themselves] because there’s a female in
the vicinity.” As our Supreme Court has recognized, the crime of
indecent exposure “invariably entails no physical aggression or
even contact . . . .” (In re Lynch (1972) 8 Cal.3d 410, 430.)
Moreover, “‘[i]t is generally agreed that the exhibitionist does not
seek further contact with the victim; on the contrary, he is afraid
of it. There is usually some appreciable distance which separates
the exhibitionist and the object and rarely does it occur when the
parties are in close proximity.’ [Citation.]” (Ibid.) This is such a
case.
                            DISPOSITION
       The MDO commitment order is reversed.
       CERTIFIED FOR PUBLICATION.



                        PERREN, J.


I concur:




      TANGEMAN, J.




                                11
       YEGAN, Acting P. J., Dissenting:
       I respectfully dissent. The seasoned Superior Court judge
expressly found an implied threat that appellant would sexually
accost the female correctional guard in the future. Sitting as
trier of fact, it could rationally draw this inference from the
guard’s testimony. This is not impermissible speculation as a
matter of law. (People v. Bohana (2000) 84 Cal.App.4th 360, 368-
369.) The felony offense of indecent exposure can, in theory, be
committed in a way that such inference cannot be drawn. But
that is not what happened here. The guard was placed in fear for
her safety because of appellant’s actions. He was staring at her,
staring at her crotch, stalking her, and while naked was
masturbating in front of her. He did so willfully and lewdly. We
have held that stalking is a crime involving a threat of force.
(People v. Itehua (2014) 227 Cal.App.4th 356.) Appellant’s
actions went well beyond a simple exposure of the penis. And,
his actions formed the basis for the forensic psychologist to opine
that he was a mentally disordered offender. This case would be
more robust if appellant had verbally announced his intention to
sexually accost the guard. But the Superior Court found that he
announced his intention by his actions.
       The majority opinion recites the substantial evidence rule
but in my view, it is not applied. It draws inferences away from
the judgment. The guard’s testimony and her expressed fear, as
well as the expert opinion are given little, if any, weight on
appeal. We should not view the elements of the offense in a
vacuum. The entire evidentiary picture before and during
appellant’s encounters with the guard give the context in which
the offense has been committed. To not consider the factual
context gives a distorted view of what happened and why the




                                 1
Board of Prison Terms initiated the MDO proceeding. To the
extent that People v. Kortesmaki (2007) 156 Cal.App.4th 922 and
People v. Green (2006) 142 Cal.App.4th 907 indicate to the
contrary, they should not be followed. I concurred in these
opinions but upon reflection, they go too far.
       To be sure, our resolution of the case depends on an
intellectual inquiry and a fair application of legal principles. But
we should apply a practical wisdom and ask ourselves what is
really going on here. We should not be a slave to the literal
wording of the commitment offense and its least adjudicated
elements. To do so here defeats justice. The MDO law is civil in
nature and even though there are consequences, it seems obvious
that the majority’s technical reading of the law will lead to the
release of a person who is just not ready for release into the
community. If he cannot control his sexual urges in a confined
setting, how can he do so in the community? It does not appear
to me that the majority opinion furthers the express legislative
goal of protecting the public.
       I make a final observation. Whatever can be said about In
re Lynch (1972) 8 Cal.3d 410, 430, it is not binding upon us as a
rule of law. I am not called upon to agree or disagree with 50-
year-old dicta concerning lack of aggression of an exhibitionist. It
is sufficient to observe 1) appellant’s actions are far more
egregious than simple exhibition and 2) there is one female guard
who does not agree. I therefore must respectfully dissent.
       CERTIFIED FOR PUBLICATION.



                                     YEGAN, Acting P. J.




                                 2
                   Donald G. Umhofer, Judge *

            Superior Court County of San Luis Obispo
                ______________________________

      Gerald J. Miller, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Margaret E. Maxwell and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.




      * Retired Judge of the San Luis Obispo Superior Court
assigned by the Chief Justice pursuant to article VI, § 6 of the
California Constitution.
