Filed 3/28/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

DONALD FINCH WARREN,

 Defendant and Appellant.

2d Crim. No. B289648

(Super. Ct. No. 18PT-00224)

(San Luis Obispo County)

Donald Finch Warren appeals the trial court’s order 

declaring him a mentally disordered offender (MDO) and 

committing him to the Department of Mental Health for 

treatment. (Pen. Code, § 2962, et seq.)1 Appellant contends the 

evidence is insufficient to support the finding that his 

commitment offense, felony indecent exposure (§ 314), involved 

an express or implied threat of force or violence likely to produce 

1 All statutory references are to the Penal Code unless 

otherwise stated.

 
substantial physical harm, as contemplated in section 2962, 

subdivision (e)(2)(Q). We agree and reverse.2

FACTS AND PROCEDURAL HISTORY

In 2013, appellant was convicted of possession of 

methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and 

was sentenced to 32 months in state prison. He was scheduled to 

be released on parole in November 2017. While serving his 

sentence in San Diego County, he was charged in a January 2014 

rules violation report (RVR) with violating prison rules by 

committing the offense of felony indecent exposure (§ 314, subd. 

(1)).3 The matter was referred to the San Diego County District 

Attorney for possible investigation and prosecution (Cal. Code 

Regs., tit. 15, § 3316, subd. (a)). Pursuant to appellant’s request, 

his RVR disciplinary hearing was postponed pending the outcome 

of the referral for criminal prosecution. (Id., subd. (c).)

In November 2014, appellant was convicted in San Diego 

County Superior Court of felony indecent exposure and was 

sentenced to an additional and consecutive 32-month prison 

2 In light of our conclusion, we need not address appellant’s 

alternative contention that the evidence is insufficient to support 

the finding that he represents a substantial danger of physical 

harm to others by reason of his severe mental disorder (§ 2962, 

subd. (d)(1)).

3 An RVR is issued to document serious inmate misconduct 

that is a violation of law or is not minor in nature. (In re Gray

(2007) 151 Cal.App.4th 379, 389.) An RVR triggers certain 

procedural protections and can result in various forms of 

discipline for the offending inmate. (See Cal. Code Regs., tit. 15, 

§§ 3313-3316.) The offense of felony indecent exposure 

constitutes a serious violation of the rule that inmates shall not 

engage in illegal sexual acts. (Id., § 3007.)

2

 
term. In April 2015, following his RVR disciplinary hearing, he 

was found guilty of violating prison rules by committing the 

felony indecent exposure offense. He was scheduled to be 

released on parole in November 2017.

In September 2017, the Board of Prison Terms determined 

that appellant met the MDO criteria and sustained the 

requirement of treatment as a condition of his parole. Appellant 

petitioned for a hearing pursuant to section 2966, subdivision (b). 

Counsel was appointed to represent him and he waived his right 

to a jury trial. 

Dr. Angie Shenouda, a forensic psychologist at Atascadero 

State Hospital, testified at the hearing. After interviewing 

appellant and reviewing his records, Dr. Shenouda opined that he 

suffers from a severe mental disorder, i.e., schizoaffective bipolar 

type. His symptoms include auditory hallucinations, selfharming behaviors, and hypersexuality. The doctor also 

concluded that appellant’s mental disorder was a cause or 

aggravating factor in his commission of the commitment offense, 

that his disorder was in remission but could not be kept in 

remission without treatment, and that by reason of his disorder 

he represented a substantial danger of physical harm to others.

To prove that appellant’s commitment offense of felony 

indecent exposure qualified him for MDO treatment, the People 

offered copies of his CLETS4 report and the RVR regarding the 

4 CLETS is an acronym for California Law Enforcement 

Telecommunications System, a Department of Justice computer 

system that reports criminal history information. (People v. 

Martinez (2000) 22 Cal.4th 106, 113.)

3

 
offense.5 The CLETS report includes appellant’s 2014 conviction 

of the current offense, and his prior convictions in 2003 on one 

misdemeanor count of indecent exposure (§ 314) and two counts 

of committing a lewd act on a child under the age of 14 (§ 288, 

subd. (a)). 

In the RVR, female Correctional Officer M.M. reported:

“On Friday January 31, 2014 at approximately 0713 hours while 

performing my duties as housing unit 15 control officer, I 

released all the inmates from the unit for breakfast. I observed 

[appellant] remaining in the unit standing at the urinal behind 

the podium continuously staring at me. I gave [appellant] an 

order to exit the unit and he complied. As he entered the sally 

port he completely stopped directly beneath me looking up at my 

crotch through the control booth window. He proceeded to 

breakfast. [¶] At approximately 0755 hours while releasing

morning medication I opened cells 201 through 209. [Appellant] 

exited cell 204 completely naked. Utilizing his right hand 

holding his erect penis stroking it back and forth while directly 

looking at me. I contacted Officer Strong to respond to the area. 

Officer Strong observed [appellant] masturbating and gave him a

5 The evidence was offered pursuant to subdivision (f) of 

section 2962, which states in pertinent part: “[T]he existence or 

nature of the crime, as defined in paragraph (2) of subdivision (e), 

for which the prisoner has been convicted may be shown with 

documentary evidence. The details underlying the commission of 

the offense that led to the conviction, including the use of force or 

violence, causing serious bodily injury, or the threat to use force 

or violence likely to produce substantial physical harm, may be 

shown by documentary evidence, including, but not limited to, 

preliminary hearing transcripts, trial transcripts, probation and 

sentencing reports, and evaluations by the State Department of 

State Hospitals.”

4

 
direct order to stop and step inside his assigned cell and I closed 

the cell door. I notified Sergeant Wall of the incident and yard 

staff cuffed and escorted [appellant] out of the unit. I fear for my 

safety with him on the yard, due to his stalking behavior. His 

progression from stalking to masturbating directly at me leads 

me to fear he may take it further. I was offered EAP [Employee 

Assistance Program] which I declined.”

The RVR also refers to an incident report in which 

Correctional Officer Strong stated: “On Friday January 31, 2014 

at approximately 0713 hours while performing my duties as 

Housing Unit Floor Officer and monitoring the morning chow 

release I observed [appellant] at the urinal in B section behind 

the podium. Using [t]he P/A . . . Correctional Officer [M.M.], [the]

Housing Unit 15 control [b]ooth [o]fficer, prompted [appellant] to 

exit the building. [Appellant] complied. While exiting the 

Housing Unit I observed [appellant] stopped in the sally port 

looking straight up peering in the control booth, pausing for 

approximately 2-3 seconds then continuing on his way to chow. 

At approximately 0755 [h]ours while monitoring the morning 

medication release, Correctional Officer [M.M.] opened the last 

section for meds . . . . Correctional Officer [M.M.] notified me via 

the P/A [s]ystem stating ‘check out 204[.’] I walked from the 

podium area behind the desk out to A-Section Dayroom by the 

T.V[.] area benches and I observed [appellant] standing on the 

tier in front of his cell staring in the direction of the control booth 

and using his right hand stroking his penis. I ordered [appellant] 

to stop and step back into his cell. [Appellant] complied.”

At the MDO hearing, the trial court asked the prosecutor to 

explain his theory that appellant’s offense of felony indecent 

exposure was a qualifying offense under the MDO law. The 

5
prosecutor offered that “[t]he actions of the patient [sic] were

obviously very threatening to [Officer M.M.]” as reflected in the 

RVR. The court responded, “Standing there naked and 

masturbating.” The prosecutor replied, “It sounds kind of 

threatening to me, your Honor. She indicates her fear in that, 

your Honor, too.” 

In testifying at the hearing, appellant denied exposing 

himself to Officer M.M. and denied he had ever stared at the 

officer or tried to intimidate her. Appellant also asserted that 

when the alleged incident occurred, Officer M.M. “was 50 feet 

away from me inside a secure location where they have a 

switchboard for operating the mechanics of the doors to the 

cell[s].” He acknowledged that about two weeks prior to the 

incident, another officer had accused him of looking up at Officer 

M.M.’s crotch as she stood in the guard tower. He also surmised 

that although the other inmates were unaware of his prior 

criminal history, his prior offenses were “common knowledge” 

among the correctional staff.

The prosecutor argued that the proffered evidence “makes 

it very clear that this woman correctional officer was in a position 

to see this as stalking behavior and an acceleration of activity.” 

The prosecutor added that “[appellant] did admit that the staff 

was aware of this past sexual situation. And it seems to me that 

makes the fear of this female correctional officer all the more 

reasonable. And when the court fits this in with the testimony of 

Dr. Shenouda and the totality of circumstances here, your Honor, 

there is no reasonable doubt. All [MDO] criteria are met.” 

Defense counsel replied that “[the prosecution] is relying on 

[section 2962, subdivision (e)(2)(Q)], which reads: ‘A crime in 

which the perpetrator expressly or impliedly threatened another 

6
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.’ 

Now, we’re talking about someone 50 feet away in a secluded, 

closed room of some sort. It strains the bounds of credulity to put 

logic behind that.” Counsel went on to add that “even if you take 

two separate instances, one where he supposedly is staring at her 

up in this booth that she’s in; or, comes out of his cell naked, how 

is that a threat to her? How is that a threat of force or violence? 

I don’t see it. I think it’s ridiculous.”

The prosecutor countered that “sexual assault is a crime of 

force or violence,” Officer M.M. “was aware of [appellant’s] past,”

and that “[t]he circumstances of the offenses are ones that any 

reasonable person would be in subjective and objective fear.” 

Defense counsel then reiterated, “[H]ow do you threaten 

somebody from 50 feet away on a different tier?” 

The court responded: “Well, you are showing the woman 

your -- what organ you are going to use on her. I mean, most 

reasonable women are really bothered by guys that expose 

themselves in a masturbating way because it portrays to them 

that he wants to use his organ on them. Now, the guys might 

think, well, that’s a pretty stupid way to attract a woman, if that 

was it. Or is he just pleasuring himself because there’s a female 

in the vicinity? So, under the circumstances and in the way she 

wrote up the [RVR], she was obviously afraid by what she saw. 

Above and beyond the fact that he happened to be standing 

outside naked and masturbating based [on] his staring, his 

watching, his looking, et cetera. She refers to being on the yard, 

probably not the only place that a correctional officer is in [is] a 

booth. So I’m satisfied that [section 2962, subdivision (e)(2)(Q)] 

7
was met here. And that a reasonable woman would believe that 

force or violence would be used on her, not in that exact moment, 

but it’s an implied threat.” 

The court went on to find that “[t]he other [MDO] criteria 

are met. He can’t be kept in remission. He’s a dangerous guy 

because he’s hypersexual and he’s bipolar . . . . And if he can’t

control it in a secure setting, I’m worried about him out there in

an unsecured setting. And so I find that . . . all criteria were met. 

His petition is denied.” 

DISCUSSION

Appellant contends the evidence is insufficient to support 

the finding that his commitment offense of felony indecent 

exposure (§ 314) involved an express or implied threat to use 

force or violence (§ 2962, subd. (e)(2)(Q)). We agree.

“The substantial evidence rule applies to appellate review 

of the sufficiency of the evidence in MDO proceedings. [Citation.] 

We review the record in the light most favorable to the judgment 

to determine whether it discloses substantial evidence—‘evidence 

that is reasonable, credible, and of solid value’—such that a 

reasonable trier of fact could find beyond a reasonable doubt that 

the commitment offense was a qualifying offense under the MDO 

statute. [Citation.]” (People v. Labelle (2010) 190 Cal.App.4th 

149, 151.)

To commit appellant for MDO treatment as a condition of 

his parole, the trial court had to find beyond a reasonable doubt 

that the offense for which he was sentenced to prison—felony 

indecent exposure—is a qualifying offense. (§ 2962, subd. (e).) As 

relevant here, a person is guilty of misdemeanor indecent 

exposure if he “willfully and lewdly . . . [¶] 1. Exposes his person, 

or the private parts thereof, in any public place, or in any place 

8
where there are present other persons to be offended or annoyed 

thereby . . . .” (§ 314.) The crime becomes a felony where, as 

here, the defendant has a prior conviction for indecent exposure 

under subdivision (1) of section 314, or a prior conviction for 

committing a lewd act on a child under the age of 14 in violation 

of section 288. (Ibid.)

The trial court found that appellant’s felony indecent 

exposure offense qualified him for MDO treatment because it was 

“[a] crime in which the perpetrator expressly or impliedly 

threatened 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).) In making this 

finding, the court primarily relied on Officer M.M.’s statements 

that “I fear for my safety with [appellant] on the yard, due to his 

stalking behavior” and that “[h]is progression from stalking to 

masturbating directly at me leads me to fear he may take it 

further.” 

Appellant’s conviction of felony indecent exposure, however, 

does not encompass the alleged “stalking behavior” he exhibited 

prior to his commission of the offense. As we have previously 

recognized, “other crimes the prisoner may have committed in 

perpetrating the commitment offense are irrelevant to the 

determination whether that offense meets the criteria for MDO 

treatment.” (People v. Kortesmaki (2007) 156 Cal.App.4th 922, 

926-927, citing People v. Green (2006) 142 Cal.App.4th 907, 913.)

In any event, the evidence is insufficient to prove that 

appellant’s felony indecent exposure offense involved a threat to 

use force or violence likely to produce substantial physical harm. 

Appellant walked out of his cell naked and masturbated while 

9
looking at a female correctional officer who stood a substantial 

distance away from him in a secure location. Earlier that 

morning, he was twice seen briefly staring at the same officer. 

On each occasion, he was ordered to cease his offensive behavior

and he immediately complied. Moreover, there is no evidence 

that appellant ever attempted to make physical contact with 

Officer M.M. or that he exhibited aggressive, forceful, or violent 

behavior toward her or anyone else.

In arguing below that appellant’s offense involved a threat 

to use force or violence, the prosecution speculated that Officer 

M.M. was aware of appellant’s prior convictions under section 

288 and offered that “sexual assault is a crime of force or 

violence.” But nothing in the record indicates that appellant’s 

prior sex offenses involved the use of force or violence or a threat 

to use force or violence. Both of his prior convictions were under 

subdivision (a) of section 288. Although a conviction under 

subdivision (b) of the statute necessarily includes a finding that 

the defendant used or threatened to use force or violence, no such 

finding is required for a conviction under subdivision (a).

Moreover, there is nothing else in the record to suggest—

much less prove beyond a reasonable doubt—that appellant

threatened Officer M.M. with the use of force or violence likely to 

produce substantial physical harm. In finding otherwise, the 

trial court emphasized Officer M.M.’s statement that as a result 

of appellant’s conduct, she feared for her future safety “on the 

yard.” But the officer’s stated fear of appellant, even if 

objectively reasonable, does not help establish that he actually 

threatened to use force or violence against her at some 

unspecified time in the future.

10
The trial court nevertheless reasoned that appellant

intended to convey such a threat to Officer M.M. because men 

who expose themselves in the manner he did “are showing the 

woman . . . what organ you are going to use on her.” The court

also acknowledged, however, that men who commit such acts 

may “just [be] pleasuring [themselves] because there’s a female in 

the vicinity.” As our Supreme Court has recognized, the crime of 

indecent exposure “invariably entails no physical aggression or 

even contact . . . .” (In re Lynch (1972) 8 Cal.3d 410, 430.) 

Moreover, “‘[i]t is generally agreed that the exhibitionist does not 

seek further contact with the victim; on the contrary, he is afraid 

of it. There is usually some appreciable distance which separates 

the exhibitionist and the object and rarely does it occur when the 

parties are in close proximity.’ [Citation.]” (Ibid.) This is such a 

case. 

DISPOSITION

The MDO commitment order is reversed.

CERTIFIED FOR PUBLICATION.

PERREN, J.

I concur:

TANGEMAN, J.

11
YEGAN, Acting P. J., Dissenting:

I respectfully dissent. The seasoned Superior Court judge 

expressly found an implied threat that appellant would sexually 

accost the female correctional guard in the future. Sitting as 

trier of fact, it could rationally draw this inference from the 

guard’s testimony. This is not impermissible speculation as a 

matter of law. (People v. Bohana (2000) 84 Cal.App.4th 360, 368-

369.) The felony offense of indecent exposure can, in theory, be 

committed in a way that such inference cannot be drawn. But 

that is not what happened here. The guard was placed in fear for 

her safety because of appellant’s actions. He was staring at her, 

staring at her crotch, stalking her, and while naked was 

masturbating in front of her. He did so willfully and lewdly. We 

have held that stalking is a crime involving a threat of force. 

(People v. Itehua (2014) 227 Cal.App.4th 356.) Appellant’s 

actions went well beyond a simple exposure of the penis. And, 

his actions formed the basis for the forensic psychologist to opine 

that he was a mentally disordered offender. This case would be 

more robust if appellant had verbally announced his intention to 

sexually accost the guard. But the Superior Court found that he 

announced his intention by his actions.

The majority opinion recites the substantial evidence rule 

but in my view, it is not applied. It draws inferences away from 

the judgment. The guard’s testimony and her expressed fear, as 

well as the expert opinion are given little, if any, weight on 

appeal. We should not view the elements of the offense in a 

vacuum. The entire evidentiary picture before and during 

appellant’s encounters with the guard give the context in which 

the offense has been committed. To not consider the factual 

context gives a distorted view of what happened and why the 

1
Board of Prison Terms initiated the MDO proceeding. To the 

extent that People v. Kortesmaki (2007) 156 Cal.App.4th 922 and 

People v. Green (2006) 142 Cal.App.4th 907 indicate to the 

contrary, they should not be followed. I concurred in these 

opinions but upon reflection, they go too far. 

To be sure, our resolution of the case depends on an 

intellectual inquiry and a fair application of legal principles. But 

we should apply a practical wisdom and ask ourselves what is 

really going on here. We should not be a slave to the literal 

wording of the commitment offense and its least adjudicated 

elements. To do so here defeats justice. The MDO law is civil in 

nature and even though there are consequences, it seems obvious 

that the majority’s technical reading of the law will lead to the 

release of a person who is just not ready for release into the 

community. If he cannot control his sexual urges in a confined 

setting, how can he do so in the community? It does not appear 

to me that the majority opinion furthers the express legislative 

goal of protecting the public. 

I make a final observation. Whatever can be said about In 

re Lynch (1972) 8 Cal.3d 410, 430, it is not binding upon us as a 

rule of law. I am not called upon to agree or disagree with 50-

year-old dicta concerning lack of aggression of an exhibitionist. It 

is sufficient to observe 1) appellant’s actions are far more 

egregious than simple exhibition and 2) there is one female guard 

who does not agree. I therefore must respectfully dissent. 

CERTIFIED FOR PUBLICATION.

YEGAN, Acting P. J.

2
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.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Assistant 

Attorney General, Margaret E. Maxwell and Thomas C. Hsieh, 

Deputy Attorneys General, for Plaintiff and Respondent.

* Retired Judge of the San Luis Obispo Superior Court

assigned by the Chief Justice pursuant to article VI, § 6 of the 

California Constitution.