Rodarte

MEMORANDUM **

In 1994, petitioner was convicted of violating California Penal Code § 422 and sentenced to three years in prison. Before his release in 1996, he was certified as a “mentally disordered offender” (“MDO”) and civilly committed under California Penal Code § 2962. One prerequisite for commitment under that section was the commission of a crime involving force.

Petitioner challenged his commitment on the ground that his crime involved only the threat of force and not actual force. His commitment was upheld by the San Luis Obispo Superior Court and Division Six of the California Court of Appeal for the Second Appellate District (“Division Six”), which concluded that Section 2962’s force requirement included threats of force. Petitioner appealed to the California Supreme Court which, while his appeal was pending, held in People v. Anzalone, 19 Cal.4th 1074 , 81 Cal.Rptr.2d 315 , 969 P.2d 160, 164-65 (1999), that under Section 2962, force did not include threats of force. The supreme court then remanded petitioner’s case to Division Six to reconsider in light of Anzalone .

While petitioner was challenging the validity of his commitment, the State of California filed a…