Filed 6/24/14
                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SECOND APPELLATE DISTRICT

                                         DIVISION SIX


THE PEOPLE,                                                 2d Crim. No. B252472
                                                          (Super. Ct. No. F495520)
     Plaintiff and Respondent,                            (San Luis Obispo County)

v.

ELIAS ITEHUA,

     Defendant and Appellant.


                 In People v. Butler (1999) 74 Cal.App.4th 557, the defendant was guilty of
the crime of stalking because he threatened the victim with violence. (Pen. Code,
§ 646.9.)1 We held the defendant's offense qualified him as a mentally disordered offender
(MDO). (Butler, supra, 74 Cal.App.4th 557, 561; § 2962, subd. (e)(2)(Q).)
                 Here we hold that a defendant whose stalking offense involves implied
threats of violence also meets the criteria of an MDO. Elias Itehua appeals a judgment
committing him to the California Department of Mental Health (now known as State
Department of State Hospitals) for treatment as an MDO, following his conviction of
stalking. (§ 646.9.) His stalking offense involves a pattern of conduct that "impliedly
threatened another with the use of force or violence" within the meaning of section 2962,
subdivision (e)(2)(Q). We affirm.




1
    All statutory references are to the Penal Code unless otherwise stated.
                                 PROCEDURAL FACTS
              On July 30, 2013, the Board of Parole Hearings determined that Itehua met
the criteria of section 2962 to be committed as an MDO. Itehua filed a petition for
appointment of counsel and hearing to contest the determination. (§ 2966, subd. (b).)
              Psychologist Phylissa Kwartner testified that Itehua has a severe mental
disorder. She said he suffers from schizophrenia-paranoid type and has a history of
psychosis and auditory hallucinations. He believes "voices are emanating from his chest."
              Itehua was convicted of stalking a married woman in violation of a
restraining order obtained against him. Itehua repeatedly called, texted, and followed her,
and "appeared at her house on a regular basis." He had the "manic" delusion that "the
victim of his offense was in a relationship with him." When he appeared at the victim's
house on August 1, 2012, she "used pepper spray and called the police." Kwartner said his
mental disorder was "at least an aggravating, if not, a causal factor" in the commission of
his stalking offense.
              Kwartner testified Itehua's disorder was not in remission and could not be
kept in remission without treatment. Itehua received five months of treatment. She said he
did not "voluntarily follow the treatment plan." He lacks insight about his disorder. He
represents a substantial danger of physical harm to others because of his disorder. "[H]e
remains at risk for returning" to the stalking behavior that was involved in his commitment
offense. Itehua "would likely try to find this victim again upon release." Kwartner said he
met all the criteria for an MDO commitment.
              The trial court found that Itehua met the requisite MDO criteria. The court
found there was evidence "of some degree of force toward the victim" based on several
factors: "[Itehua] was stalking her repeatedly," there was a restraining order, and "the
victim needed to pull out pepper spray to protect herself."
                                       DISCUSSION
              Stalking as a Commitment Offense Falling Within Section 2962
              We view the evidence in the light most favorable to the judgment drawing all
reasonable inferences in support of the court's findings. (People v. Ewing (1999) 76

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Cal.App.4th 199, 209.) We do not decide the credibility of witnesses or weigh the
evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206-1207.)
              Before a prisoner may be committed as an MDO, the court must find that he
or she committed (1) an offense listed in section 2962, subdivision (e)(2); or 2) an offense
not listed, "used force or violence, or caused serious bodily injury" (§ 2962, subd.
(e)(2)(P)); or (3) "[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), italics added). "For purposes of this
subparagraph, substantial physical harm shall not require proof that the threatened act was
likely to cause great or serious bodily injury." (Ibid.)
              Itehua notes that stalking is not one of the listed crimes in section 2962. He
contends that to qualify for an MDO commitment, his offense must fall within one of the
"catch all" provisions of the statute. He argues his stalking offense (§ 646.9) was not "a
crime of force or violence, as required for commitment under the MDO statute."
(Boldface omitted.)
              Section 646.9, subdivision (a) provides: "Any person who willfully,
maliciously, and repeatedly follows or willfully and maliciously harasses another person
and who makes a credible threat with the intent to place that person in reasonable fear for
his or her safety, or the safety of his or her immediate family is guilty of the crime of
stalking . . . ." (Italics added.) Consequently, proof that the defendant made "a credible
threat" is a required element for a conviction of stalking. (People v. Ewing, supra, 76
Cal.App.4th at p. 210.)
              In Butler, we held that a defendant who committed the offense of stalking
came within the commitment offense requirement for an MDO commitment. (People v.
Butler, supra, 74 Cal.App.4th at p. 561.) "Appellant's stalking conviction under section
646.9 meets the criteria of section 2962, subdivision (e)(2)(Q)." (Ibid.) "A conviction
under section 646.9, subdivision (a) necessarily meets the definition of force . . . ." (Id. at
p. 560, italics added.)

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              Itehua claims Butler is distinguishable because there the defendant made a
verbal threat of violence and made no verbal threats. "[The defendant] followed his victim
and threatened to kill her and members of her immediate family." (People v. Butler, supra,
74 Cal.App.4th at pp. 561-562.) Kwartner acknowledged in her testimony that Itehua did
not "verbally" threaten the victim with violence.
              The stalking statute defines a "credible threat" as "a verbal or written threat
. . . or a threat implied by a pattern of conduct . . . made with the intent to place the person
that is the target of the threat in reasonable fear for his or her safety . . . and made with the
apparent ability to carry out the threat . . . . " (§ 646.9, subd. (g), italics added.) The MDO
statutory scheme and section 646.9 are harmonious. They contain similar language and
were enacted to achieve the same underlying goal to protect the public.
              An implied credible threat may be inferred from a pattern of stalking
conduct. (People v. Uecker (2009) 172 Cal.App.4th 583, 595 ["a reasonable jury could
have found that defendant made an implied threat to her safety in that he was going to do
whatever he needed to get M. to go out with him"]; People v. Falck (1997) 52 Cal.App.4th
287, 299 ["it can be inferred that appellant intended to cause fear in the victim from the
fact that he insisted on maintaining contact with her although she clearly was attempting to
avoid him, and although he had been warned away by the police"].)
              The trial court reasonably inferred Itehua's pattern of conduct was an implied
credible threat. The victim was a married woman with children who did not want Itehua to
contact her. Kwartner said she "was trying to get away from him; she had a restraining
order against him." But Itehua violated that restraining order. Kwartner further testified,
"Itehua continued to call her, text her, follow her, he appeared at her house on a regular
basis. He continued calling her despite her changing her phone number nine times. . . . He
also went to the victim's husband's workplace and harassed him." Itehua had an
"erotomanic delusion" that he "was in a relationship with his victim." On August 1, 2012,
Itehua went to her home again. The victim "used pepper spray and called the police."
              "[S]talking is an act of domestic violence . . . ." (People v. Ogle (2010) 185
Cal.App.4th 1138, 1140.) In Butler, we held stalking is an MDO qualifying offense where

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the defendant made express threats, but we did not exclude stalking involving a pattern of
implied threats. "An implied threat of force was one that 'invited resistance or escape with
possible resulting injury.'" (People v. Butler, supra, 74 Cal.App.4th at p. 560.) Here the
trial court reasonably inferred that Itehua's pattern of conduct was an implied threat that
invited resistance or escape. Harassment restraining orders are issued on a showing that
there is "a course of conduct that would place a reasonable person in fear for his or her
safety." (Code Civ. Proc., § 527.6, subd. (b)(2).)
              Itehua violated the restraining order to achieve his "erotomanic delusion."
This would instill fear in any reasonable person repeatedly targeted by a severely mentally
disordered man who held such a delusion. Indeed, the trial court found the victim "needed
to pull out pepper spray to protect herself."
              The judgment is affirmed.
              CERTIFIED FOR PUBLICATION.




                                           GILBERT, P. J.
We concur:



              YEGAN, J.



              PERREN, J.




                                                5
                                 Dodie A. Harman, 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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