People v. Pitcock CA2/6

Filed 9/19/16 P. v. Pitcock CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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