People v. Simmons CA6

Filed 11/4/13 P. v. Simmons CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039198 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. E9909752)

v.

MARK STEVEN SIMMONS,

Defendant and Appellant.

Defendant Mark Steven Simmons appeals from an order extending his involuntary commitment as a mentally disordered offender (MDO), arguing that insufficient evidence supports the order. We will affirm. FACTUAL AND PROCEDURAL HISTORY1 In early 1999, defendant, who was then 39 years old, boarded at a home where a 14-year-old girl, D., lived with her mother. One day, defendant entered D.’s bedroom wearing only a bathrobe, held D.’s shoulders, and pressed himself against her back until she felt his penis. Similar incidents occurred four or five times. On a separate occasion,

1 In his opening brief, defendant relies on the factual and procedural summary in People v. Simmons (Jan. 31, 2008, H031491) [nonpub. opn.], a prior unpublished opinion of this court regarding defendant. We take judicial notice of that decision and our prior decision in People v. Simmons (Jun. 5, 2013, H037403) [nonpub. opn.]. (Evid.Code, § 452, subd. (d).) We base our factual and procedural summary on those decisions, as well as the record in this case.

D. woke up and discovered that defendant was touching her legs, thighs, and the area between her legs. D. pretended to be asleep, and defendant continued to touch her for 30 minutes or more. D. tried to push defendant away, and he eventually stopped touching her. In March 1999, defendant pleaded no contest to two counts of lewd and lascivious acts on a 14-year-old girl who was more than 10 years younger than him. (Pen. Code, § 288, subd. (c)(1).)2 He was placed on probation in May 1999, on condition that he have no contact with D. Probation was revoked in November 1999 because defendant violated that condition. Defendant admitted the probation violation in December 1999, and he was committed to prison for a term of two years eight months. In November 2000, defendant was transferred from prison to Atascadero State Hospital for treatment. He was discharged to the Conditional Release Program (CONREP) in August 2001, but shortly thereafter he was re-hospitalized at Napa State Hospital (NSH) because he expressed suicidal ideations and failed to follow the CONREP rules. In August 2003, the Santa Clara County District Attorney filed a petition, pursuant to the MDO Act (Pen. Code, § 2960 et seq.), to extend defendant’s involuntary commitment beyond the expiration of his parole term. A jury found that defendant was an MDO, and the trial court extended defendant’s commitment for a one-year period. Between 2004 and 2011, the court periodically extended defendant’s MDO commitment. In April 2012, the Santa Clara County District Attorney filed a petition to extend defendant’s MDO commitment for an additional year. A court trial on the petition commenced on December 6, 2012.