Warren

*751 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 substantial physical harm, as contemplated in section 2962, subdivision (e)(2)(Q). We agree and reverse.

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 *752 the offense of felony indecent exposure (§ 314, subd. (1)). 3 The matter *347 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…

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, 100 Cal.Rptr.2d 845 .) The felony offense of indecent exposure can, in theory, be committed in a way that such inference *758 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 , 173 Cal.Rptr.3d 614 .) 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…