Filed 9/19/16 P. v. Pitcock 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                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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. B271079
                                                                            (Super. Ct. No. 16PT-00083)
    Plaintiff and Respondent,                                                (San Luis Obispo County)
v.
JERRY R. PITCOCK,
    Defendant and Appellant.


                   Jerry R. Pitcock appeals from the judgment entered following a court
trial at which he was determined to be a mentally disordered offender (MDO). (Pen.
Code, § 2960 et seq.)1 Appellant contends, and the Attorney General agrees, that
expert testimony was improperly received to prove that the commitment offense
(§ 69 - obstructing or resisting an executive officer) involved force or violence or the
threat of force or violence likely to produce substantial harm. (§ 2962, subds. (b) &
(e)(2); People v. Stevens (2015) 62 Cal.4th 325, 336.) We reverse and remand for new
trial.
                                        Facts and Procedural History
                   In 2013, appellant pled no contest to obstructing or resisting an executive
officer (§ 69) and was sentenced to two years eight months state prison.




1         All statutory references are to the Penal Code.
              On December 30, 2015, the Board of Parole Hearings (BPH) determined
that appellant met the MDO criteria and required treatment. Appellant filed a petition
challenging the BPH determination and purportedly waived jury trial.
(§§ 2966, subd. (b); 2972, subd. (a).)
              Doctor Brandi Mathews, a forensic psychologist affiliated with
Atascadero State Hospital, testified that appellant suffered from schizoaffective
disorder and mood symptoms, a severe mental disorder manifested by auditory
hallucinations, paranoia, ideas of reference, and mania. The doctor opined that
appellant met all the MDO criteria, and over defense objection, opined that the
commitment offense involved the use of force or violence.
                                         Discussion
              To commit a prisoner under the MDO law, the prosecution must prove,
among other things, that the prisoner was convicted of a qualifying offense listed in
section 2962, subdivision (e)(2)(A) through (O), or that the commitment offense
comes within the catchall provisions of subdivision (e)(2)(P) or (e)(2)(Q). (People v.
Kortesmaki (2007) 156 Cal.App.4th 922, 926.) Subdivision (e)(2)(P) includes any
crime “not enumerated . . . in which the prisoner used force or violence, or caused
serious injury . . . .” Subdivision (e)(2)(Q) 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 . . . .”
              The Attorney General concedes that a violation of section 69 is not an
enumerated offense under section 2962, subdivision (e)(2)(D) and may or may not
qualify as a commitment offense under the catchall provisions of subdivision (e)(2)(P)
or (e)(2)(Q).2 A section 69 violation can be committed by a threat, unaccompanied by



2       In 2013, section 69 provided: “Every person who attempts, by means of any
threat or violence, to deter or prevent an executive officer from performing any duty
imposed upon such officer by law, or who knowingly resists, by the use of force or
violence, such officer, in the performance of his duty, is punishable by a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision


                                             2
physical violence, even though the threatened use of force or violence is not likely to
produce substantial physical harm. (In re Manuel G. (1997) 16 Cal.4th 805, 814.)
                Over defense objection, Dr. Mathews testified that appellant entered a
library, took a camera off the wall, and when confronted, fled the scene. “A deputy
chased after him, and at one point Mr. Pitcock began striking the officer.” Dr.
Mathews did not disclose the source of those facts. Although appellant’s rap sheet and
abstract of judgment were received into evidence, they do not reflect the underlying
facts of the offense.
                In People v. Stevens, supra, 62 Cal.4th 325, our Supreme Court held that
the prosecution may not prove facts underlying the commitment offense through a
mental health expert’s opinion testimony. “[P]roof of a qualifying conviction under
the MDO Act is based on facts rather than on defendant’s psychological condition, and
thus does not call for a mental health expert’s opinion testimony.” (Id., at p. 336.)
That is the case here. Dr. Mathews’ testimony was the only evidence that appellant
used force or violence or threats of force or violence likely to produce substantial
physical harm when he violated section 69.
                Because the MDO scheme is civil in nature, double jeopardy does not
apply. (People v. Francis (2002) 98 Cal.App.4th 873, 877.) We accordingly reverse
and remand for new trial. (See e g., People v. Dodd (2005) 133 Cal.App.4th 1564,
1571, fn. 3.)
                                     Jury Trial Waiver
                Appellant argues that he was not advised of his right to jury trial and the
trial court failed to obtain a personal waiver. (§ 2972, subd. (a); People v. Blackburn
(2015) 61 Cal.4th 1113, 1130-1131 [decision to waive jury trial belongs to the
defendant in the first instance; trial court must elicit waiver from the defendant on the
record].) The superior court “CASE SUMMARY” index, a computer generated

(h) of Section 1170, or in a county jail not exceeding one year, or by both such fine
and imprisonment.” (Italics added.)



                                              3
document, reflects that appellant waived jury trial at a February 17, 2016 trial setting
conference but there is no reporter’s transcript of the proceeding.3 Nor is there a
minute order. (See Gov. Code, § 69844 [“The clerk of the superior court shall keep
the minutes and other records of the court”].) It is unknown whether the jury waiver
was made by counsel or appellant. The absence of an express admonition and
personal waiver requires reversal regardless of prejudice. (Id., at p. 1135.)
              The judgment is reversed and the matter remanded for new trial at which
time a jury waiver, if elected, can be taken.
              NOT TO BE PUBLISHED.


                                                         YEGAN, Acting P. J.


We concur:


              PERREN, J.


              TANGEMAN, J.




3        The superior court “CASE SUMMARY” indicates that appellant waived jury
trial on February 10, 2016 but lists the wrong prosecuting attorney and panel attorney
(Frederick Foss rather than Jennifer Fehlman). The February 10, 2016 reporter’s
transcript contradicts the court “CASE SUMMARY” notes and reflects that trial
counsel (Frederick Foss) was appointed in abstentia and no jury waiver was taken.


                                            4
                             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.
              Kamala D. Harris, Attorney General, Gerald A. Engler, 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.
