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Name: People v. Kortesmaki
Case #: B196842
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 11/06/2007
Summary

On application of the Board of Prison Terms, a defendant may be treated under the Mentally Disordered Offender Treatment Program (Pen. Code, sec. 2962) as a condition of parole, if his commitment offense qualifies as a crime involving an implied threat to use force or violence likely to produce substantial physical harm. The MDO law applies to prisoners serving sentences for specific enumerated crimes as well as non-enumerated crimes where in the commission of the commitment crime, the prisoner expressly or impliedly threatened another with the use of force or violence likely to produce substantial physical harm. (Pen. Code, sec. 2962, subd. (e)(2)(Q).) Only the commitment offense may be considered and not those appellant may have committed in perpetrating the commitment offense. (People v. Green (2006) 142 Cal.App.4th 907, 913.) Here, appellant was convicted of possession of flammable material with intent to set fire to property (Pen. Code sec. 453, subd. (a)). The appellate court found that the trial court erred in basing its decision to order appellant committed for MDO treatment on the arson of property appellant committed as appellant was not convicted of that offense. However, the court found that there nevertheless was sufficient evidence to sustain a finding that appellant’s commitment offense qualified as a crime involving an implied threat to use force likely to produce substantial harm. Appellant, carrying a bottle containing a flammable liquid, approached two men outside a liquor store and told them he was going to start a fire and then did so. The court found that this constituted an implied threat sufficient to meet the requirement of subdivision (e)(2)(Q).