Trial court erred in finding defendant to be a mentally disordered offender (MDO) where his commitment offense, indecent exposure, did not involve an express or implied threat of the use of force or violence. In 2013, Warren was convicted of a drug offense and sentenced to prison. While serving his sentence he was convicted of felony indecent exposure. Based on that conviction, the Board of Prison Terms found Warren met the MDO criteria and required treatment as a condition of his parole. He challenged this requirement by petitioning for a hearing (Pen. Code, § 2966, subd. (b)). At his trial, the prison’s rule violation report was offered in evidence. It reflected that after exhibiting “stalking behavior” on several occasions, Warren came out of his cell naked and masturbated while staring at a female correctional officer who was 50 feet away in a secure location. The officer stated that the incidents caused her to fear for her safety. The trial court found that Warren met the MDO criteria. Warren appealed. Held: Reversed. To commit Warren for MDO treatment as a condition of parole, the trial court had to find that the crime for which he was sentenced to prison is a qualifying offense (Pen. Code, § 2962, subd. (e)). The trial court found that Warren’s felony indecent exposure offense qualified him for MDO treatment because it was a crime in which the perpetrator expressly or impliedly threatened to use force or violence (Pen. Code, § 2963, subd. (e)(2)(Q)). Here, there was insufficient evidence to support this finding. Warren’s indecent exposure conviction does not encompass the “stalking behavior” he exhibited prior to commission of the offense. Further, Warren did not try to physically contact the officer, exhibit aggressive behavior towards her, or threaten use of force or violence. [Editor’s Note: Justin Yegan dissented.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B289648.PDF