People v. Itehua

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