Filed 6/24/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

ELIAS ITEHUA,

Defendant and Appellant. 2d Crim. No. B252472 (Super. Ct. No. F495520) (San Luis Obispo County)

In People v. Butler (1999) 74 Cal.App.4th 557, the defendant was gui lty of

the crime of stalking because he threatened the vict im 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

threat s of violence also meets the criteria of an MDO

. E lias Itehua appeals a judgment

committing him to the California Departm ent of Mental Health (now known as State

Department of State Hospitals ) for treatment as a n MDO, following his conviction of

stalking. ( § 646.9.) His stalking offense involves a pattern of conduc t that " impliedly

threatened another with the use of force or violence " within the meaning of section 296 2

,
subd ivision (e)(2)(Q). We affirm.

1 All statutory references are to the Penal Code unless otherwise stated.2 PROCEDURAL FACTS

On July 30, 2013, th e Board of Parole Hearings determined that Itehua met

the criteria of secti on 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 o rder obtained against him. Itehua repeatedly call ed

, text ed

, and follow ed 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 commi ssion of

his stalking offense.

Kwartner testified Itehua ' s disorder was not in remission and could not be

ke pt in remission without treatment. Itehua rece ived five months of treatment. She said h e

did not " voluntarily follow the treatment plan

. " He lac ks insight about his disorder. He

represents a substantial danger of physical harm to o thers because of his disorder. " [ H ] e
remains at risk for returning " to the stalking behavior that was invol ved 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 tria l 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 need ed to pull out pepper spray to protect herself. "

DISCUS S ION

Stalking a s a Commitment Offe nse 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) 763

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 sh e committed (1) an offense listed i n section 2962, subdivision (e) (2) ; or 2) an offense

not listed

, " used force or violence, or c aused serious bodily injury " (§ 2962 , subd.

(e)(2) (P) ) ; or ( 3) " [a] crime in which the perpetrator expressly or impliedly threa tened

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 purpose s 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 " provision s 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.)

S ection 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 fea r for

his or her safety , or the safety of his or her immediate family is guilty of the crime of

stalking

. . . . " ( Italics added .) Consequently

, p roof that the defendant made " a credible

threat " is a required element for a conviction of stalking

. ( Peopl e 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.) " A ppellan t ' s stalking conviction under section

646.9 meets the criteria o f 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 .)4 Iteh ua claims Butler is distinguishable because there the defendant m ade 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 ,

7 4 Cal.App.4th at pp. 561

- 562.) Kwartner acknowledged in her testimony that Itehua did

not "verbally" threaten the victim with violence.

T he stalking statute defines a " credible threat " as " a verbal or written threat

. . . or a threat implied by a patte rn 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 .) T he MDO

statut ory 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. Ueck er (2009) 172 Cal.App.4th 583, 59 5 [ " 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 ca n 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 " ]. )

T he trial court reas onably infer red Itehua ' s pattern of conduct was an implied

credible threat. The victim was a married woman with children who did n ot want Itehua to

contact her. Kwartner sai d she " was trying to get away from him; she had a res training

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 chang ing 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 polic e. "

" [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 where5

the defendant made express threats , but we did not exclude stalking involving a p attern of

implied threats. "A n implied threat of force was one that ' invited resistance or escape with

possi ble resulting injury

. '" ( People v. Butler, supra , 74 C al.App.4th at p. 560.) Here the

trial court reasonably infer red that Itehua's pattern of co nduct was an implied threat that

invited resistance or escape. H arassment 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. " (Cod e Civ. Proc., § 527.6, subd. (b) (2).)

Itehua violat ed th e restraining order to achieve his " erotoma n ic delusion

. "

This would instill fear in a ny reasonable person repeatedly targeted by a severely mentally

disordered man who held such a delusion

. Indeed, t he 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.6 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.