People v. Neighbors CA2/6

Filed 3/16/21 P. v. Neighbors CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B303512
(Super. Ct. No. 19PT-00933)
Plaintiff and Respondent, (San Luis Obispo County)
v.
MARK NEIGHBORS,
Defendant and Appellant.
Mark Neighbors appeals a judgment committing him for
treatment as a mentally disordered offender (MDO) under Penal
Code section 2962.1 We conclude, among other things, that
Neighbors’s crime of annoying or molesting a child (§ 647.6, subd.
(c)(2)), a felony, based on the facts of this case, does not constitute
conduct that falls within the MDO commitment criteria. We
reverse.
1 All statutory references are to the Penal Code.
FACTS
Neighbors was convicted of felony annoying or molesting a
child. (§ 647.6, subd. (c)(2).) He was sentenced to four years in
state prison.
On October 1, 2019, after the Board of Parole Hearings
(BPH) determined Neighbors met the criteria for MDO
commitment, Neighbors filed a petition for appointment of
counsel and a hearing. The superior court appointed counsel.
Neighbors waived his right to a jury trial.
At trial, Kevin Perry, a clinical psychologist for the
Department of State Hospitals, testified Neighbors has a severe
mental disorder – a severe bipolar disorder with “psychotic
features.” He has delusional beliefs about being a CIA or federal
agent. Neighbors’s severe mental disorder was an aggravating
factor in his felony commitment offense of annoying or molesting
a child. (§ 647.6, subd. (c)(2).)
Neighbors was a registered child sex offender who went to
an elementary school. He was a sex offender and not authorized
to be near a school without permission of school authorities. He
approached two children. Neighbors asked them if they wanted
money. He then “approached a 12-year-old-boy in front” of the
school. He stepped in front of that child who was on a
skateboard, blocking the child’s path. Neighbors stuck his hand
out. He asked the boy if he wanted change. When Neighbors saw
that the child’s mother was approaching, he put his hands in his
pockets. The child started to skate toward the school. Neighbors
followed in that direction, until the child’s mother called out at
Neighbors. He then walked in the opposite direction. The child’s
mother was frightened by Neighbors’s conduct.
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Perry testified that Neighbors’s mental disorder is not in
remission. Neighbors reported hearing voices. He cannot be kept
in remission without treatment. He did not follow his treatment
plan. He refused to take medications. He had threatened staff.
He represents a “substantial danger of physical harm to others”
by reason of his severe mental disorder. He lacks insight about
his mental disorder. He does not understand his need for
treatment. He has a “past history of violence,” including “spousal
rape” in 1996. He meets all the criteria for “continued treatment
as a mentally disordered offender.”
The trial court found Neighbors met the criteria for
commitment for treatment as an MDO.
DISCUSSION
A Qualifying MDO Commitment Offense?
Neighbors contends the evidence does not support a finding
that he “used or threatened force or violence in the commission of
his committing offense.” He claims consequently the judgment
committing him as an MDO must be reversed. We agree.
We view the evidence in the light most favorable to the
judgment drawing all reasonable inferences in support of the
court’s findings. We do not decide the credibility of witnesses or
weigh the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199,
1206-1207.)
“Before a prisoner may be committed as an MDO, the court
must find that he or she committed (1) an offense listed in section
2962, subdivision (e)(2); (2) an offense not listed in which he or
she ‘used force or violence, or caused serious bodily injury’
(§ 2962, subd. (e)(2)(P)); or (3) ‘[a] crime in which the perpetrator
expressly or impliedly threatened another with the use of force or
violence likely to produce substantial physical harm in such a
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manner that a reasonable person would believe and expect that
the force or violence would be used’ (§ 2962, subd. (e)(2)(Q) . . . .).
‘For purposes of this subparagraph, substantial physical harm
shall not require proof that the threatened act was likely to cause
great or serious bodily injury.’ ” (People v. Itehua (2014) 227
Cal.App.4th 356, 359, italics omitted.)
Section 647.6 subdivision (a)(1) provides: “Every person
who annoys or molests any child under 18 years of age shall be
punished by a fine not exceeding five thousand dollars ($5,000),
by imprisonment in a county jail not exceeding one year, or by
both fine and imprisonment.”
Neighbors was convicted of section 647.6, subdivision (c)(2).
Under that subdivision, the section 647.6 offense is a felony
where the defendant has a prior conviction of a sexual offense
against a child. (§ 647.6, subd. (c)(2).) Neighbors had a prior
felony conviction for lewd and lascivious acts with a child. (§ 288,
subd. (c)(1).)
But whether a felony or a misdemeanor, section 647.6 is
not one of the enumerated offenses listed as MDO commitment
crimes in section 2962, subdivision (e)(2). That section lists a
number of sexual offenses against children that are MDO
commitment offenses, including lewd acts on a child under 14
years of age (§ 288), and continuous sexual abuse (§ 288.5).
(§ 2962, subd. (e)(2)(I) & (J).) The section 647.6 offense does not
come within the category of such serious sexual offenses.
Moreover, Neighbors made no sexual comments or sexual
gestures to any child. He did not touch the children. He did not
engage in any lewd act, nor did he disrobe or expose himself to
any child. His offense does not fall within the first category of
MDO commitment offenses.
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The facts of Neighbors’s offense also do not fall within the
second category of MDO commitment offenses. (§ 2962, subd.
(e)(2)(P).) His crime did not involve the use of “force or violence”
against children. True, his conduct was strange. He asked
children if they wanted money and stepped in front of a child on a
skateboard. But Neighbors did not use force or violence against
any child.
Neighbors’s offense also does not fall within the final
category of MDO commitment offenses. This category involves
“[a] crime in which the perpetrator expressly or impliedly
threatened another with the use of force or violence likely to
produce substantial physical harm in a manner that a reasonable
person would believe and expect that the force or violence would
be used.” (§ 2962, subd. (e)(2)(Q), italics added.)
Neighbors made no threats against the children or any
other person. He did not engage in a pattern of harassment.
Simply asking if a child wants money or stepping in front of a
skateboard does not constitute an express or implied threat to
use force or violence. Neighbors was a registered sex offender.
But the issue is whether this current offense qualifies for an MDO
commitment. Because Neighbors does not fall within the three
statutory categories for an MDO commitment, the judgment must
be reversed.
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DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
PERREN, J.
TANGEMAN, J.
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Timothy S. Covello, Judge
Superior Court County of San Luis Obispo
______________________________
Paul R. Kraus, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and David W. Williams,
Deputy Attorneys General, for Plaintiff and Respondent.
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