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Name: People v. Itehua
Case #: B252472
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 06/24/2014

Defendant whose stalking behavior involved implied threats of violence met the criteria of a mentally disordered offender (MDO). Defendant was convicted of stalking a woman in violation of a restraining order and served a term for the offense in state prison. The Board of Parole Hearings (BPH) found he met the criteria for commitment as an MDO and he contested the determination in the trial court (Pen. Code, § 2966, subd. (b)). The trial court affirmed BPH’s findings and defendant appealed. Held: Affirmed. To commit a defendant as an MDO, the court must find he committed an offense listed in Penal Code section 2962, subdivision (e)(2); or an offense not listed where he used force, violence, or caused great bodily injury; or committed a crime in which he expressly or impliedly threatened another with the use of force likely to inflict substantial bodily harm in such a manner that a reasonable person would believe force would be used. Stalking (Pen. Code, § 646.9, subd. (a)) is not an offense listed in section 2962. However, it does require proof that the defendant made a credible threat, which can be implied by a pattern of conduct, with the intent to place the person in fear for her safety. Here, defendant repeatedly contacted a married woman with children despite her efforts to get away from him and harassed her husband. On one occasion she used pepper spray to protect herself when he appeared at her home. The trial court could reasonably infer that defendant’s pattern of conduct was an implied threat of force that invited resistance or escape. The issuance of a restraining order supports this conclusion because it is issued on a showing that there is a course of conduct that would place a reasonable person in fear for his or her safety.