Opinion
2d Crim. B323764
08-22-2023
THE PEOPLE, Plaintiff and Respondent, v. JESUS JAVIER BOYTES, Defendant and Appellant.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Stefanie Yee, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Jacquelyn H. Duffy, Judge Superior Court County of San Luis Obispo (Super. Ct. No. 22PT-00476)
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Stefanie Yee, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Jesus Javier Boytes appeals from the trial court's order declaring him an offender with a mental health disorder (OMHD) as described in Penal Code section 2962. The court committed him to the Department of State Hospitals for treatment.
Unless otherwise specified, all statutory references are to the Penal Code. OMHDs "were previously described as mentally disordered offenders, or MDO's. [Citation.] The Legislature recently changed this terminology to 'offender with a mental health disorder.' (Pen. Code, § 2962, subd. (d)(3); Stats. 2019, ch. 9, § 7.) In accordance with this change, we now refer to extension proceedings under Penal Code section 2962 as OMHD commitments." (Public Guardian of Contra Costa County v. Eric B. (2022) 12 Cal.5th 1085, 1095, fn. 3.)
Appellant contends the evidence is insufficient to support the court's finding that his qualifying offense, felony indecent exposure (§ 314), met the criterion of section 2962, subdivision (e)(2)(Q). This criterion requires that appellant "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 the force or violence would be used." (Ibid.)
The People concede the "commitment order should be reversed" because "there was insufficient evidence establishing this [criterion]." We disagree and affirm.
Procedural Background
In 2021 appellant pleaded guilty to two counts of felony indecent exposure, one count of felony second degree burglary (§§ 459, 460), and one count of felony vandalism (§ 594, subds. (a), (b)(1)). He was sentenced to prison for three years, four months. His parole release date was April 30, 2022.
The Board of Prison Terms (Board) determined that appellant met the section 2962 criteria for involuntary treatment as an OMHD. Pursuant to section 2966, subdivision (b), appellant petitioned for a court hearing on whether he met the criteria.
The parties waived a jury trial. After hearing the evidence, the trial court found beyond a reasonable doubt that appellant met the section 2962 criteria.
Facts Underlying Qualifying Offense
Appellant's qualifying offense was indecent exposure at the Crossroads Pregnancy Center (Center) in Hanford, California. The witnesses to the exposure did not testify at the trial. The following facts are taken from police reports that were received in evidence: In July 2020 appellant walked into the Center's lobby. Two female employees were at the front counter, and he asked them for water. He "began to mumble and his words were 'incoherent.'" "[S]ome of the things [he] was saying were about sex, sex toys, and killing people." The women left the front desk. When one of them returned, appellant "had his penis out of the top of his shorts and it was fully exposed.... [T]he penis was flaccid and not erect.... [He] appeared to be 'fondling himself.'" Appellant put his penis back inside his pants and exited the lobby. Outside the entry to the lobby, the women saw appellant expose his penis in front of a large window.
A police officer "asked [appellant] if he [had gone] inside the business because he wanted to help the ladies become pregnant." Appellant "began nodding back and forth." He admitted that he had "exposed his genitals." Appellant said "he was aware the business was a pregnancy facility" and he "wanted to 'help' them by providing them with a 'sample.'"
Expert Testimony
Dr. Roxanne Rassti, the People's expert, opined that appellant "meets the diagnostic criteria for schizophrenia." She further opined that appellant "represent[s] a substantial danger of physical harm to others by reason of his severe mental health disorder." Her opinion was based in part on a prior indecent exposure in 2018. She testified, "As for the offense in 2018, he was in county jail and exposed himself to a female correctional officer. It was noted at the time that his statements did not make any sense. He [made] sexual comments [to] the officer[] such as how she would feel if he ejaculated on her face ...."
Dr. Michelle Vorwerk, appellant's expert, testified: "[A]lthough [appellant] does have a severe mental health disorder and is quite symptomatic of that disorder, including auditory hallucinations, delusions, guardedness and paranoia, his offenses and cases that are related to his mental illness . . . do not cause him to be a substantial danger of physical harm to others. [¶] In his qualifying offenses initially, he exposed himself and made nonsensical statements consistent with his psychotic disorder about sex and sex toys and killing people.... [H]e did not touch or physically approach or harm anyone in a physical manner." "There was no reference [in the police reports] that he made a direct threat of killing someone." Dr. Vorwerk opined that, if appellant is released, he will likely reoffend by committing acts of indecent exposure.
Neither expert opined whether appellant's qualifying offense met the "implied threat" criterion of section 2962, subdivision (e)(2)(Q).
Trial Court's Ruling
The trial court ruled, "I do find that [appellant] meets all of the criteria for certification under . . . [s]ection 2962, and so I am going to deny [his] petition. I am making those findings beyond a reasonable doubt."
The court explained: "[T]he conduct that's evidenced in [the police reports constitutes] . . . 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. [¶] The specific circumstances of the incident that took place at the Crossroads Pregnancy Center . . . involved [appellant] going into that business.... [I]t appears that he communicated with the victim in that case. She stated she was at the front counter, and he was talking to them about, quote, sex, sex toys, and killing people, close quote. It's true that there were references to the fact that he began to mumble, and his words were incoherent. But it appears, based on that [police] report, that he was making these statements to her and another person."
"There were further statements attributed to [appellant] in an interview with the investigating officer that he was aware that the business was a pregnancy facility and wanted to help them by providing them with a, quote, sample, close quote. And that when he was asked if he went inside the business because he wanted to help the ladies become pregnant, he began nodding back and forth. [¶] He was asked if during this time he exposed his genitals, and he smiled and said, quote, 'Yeah, I did it. I did it. You know what I mean.'"
"So the context of those statements and the behavior would suggest -- and especially the statements about sex, sex toys, and killing people in the context of being in a pregnancy facility where he is acknowledging that he wants to help these ladies become pregnant by providing a sample, those are all impliedly threatening statements, threatening some sort of physical force."
Standard of Review
"We review the trial court's ruling under the substantial evidence standard." (People v. Woods (2016) 3 Cal.App.5th 457, 460.) Pursuant to this standard, "'an appellate court must determine whether, on the whole record, a rational trier of fact could have found that [appellant] is an [OMHD] beyond a reasonable doubt, considering all the evidence in the light which is most favorable to the People, and drawing all inferences the trier could reasonably have made to support the finding.'" (People v. Johnson (2020) 55 Cal.App.5th 96, 107.) We "may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must . . . resolve all conflicts, in favor of the judgment." (People v. Poe (1999) 74 Cal.App.4th 826, 830.) "We . . . must affirm if there is any substantial evidence supporting the finding." (People v. Valdez (2001) 89 Cal.App.4th 1013, 1016.)
The Offense of Indecent Exposure Does Not Involve Violence or the Threat of Violence
"Indecent exposure is not a violent crime . . . . Under . . . section 314, a person commits indecent exposure if that person: '1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby . . . .' [¶] None of the conduct punishable under . . . section 314 involves physical contact, use of physical force against persons or property, infliction of physical injury or property damage, use of fear, duress, sexual contact, coercion, or threats." (In re Febbo (2020) 52 Cal.App.5th 1088, 1102.)
Substantial Evidence Supports the Trial Court's Finding
The sole issue on appeal is whether substantial evidence supports the trial court's finding that appellant "impliedly threatened [the two women at the Center] 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, subdivision (e)(2)(Q).) Appellant does not challenge the court's finding "that by reason of [his] severe mental health disorder, [he] represents a substantial danger of physical harm to others." (Id., subd. (d)(1).)
In conceding that the evidence is insufficient to support the court's "implied threat" finding, the People reason: "Appellant's conduct caused the [Center's] staff members to be reasonably nervous and fearful. . . . However, there is no evidence that appellant verbalized his intent to help the women become pregnant to anyone in the pregnancy center when he exposed himself. Rather, appellant made that statement to police officers after the crime. [Record Citation.] And there is no evidence appellant attempted to make physical contact with anyone, that he acted aggressively or violently, or that appellant had been to or targeted this pregnancy center before. . . . [¶] Thus, . . . the evidence presented did not establish that appellant's mumbling and exposing himself, without more, was an implied threat of force or violence likely to produce substantial physical harm."
But appellant did not merely "mumbl[e] and expos[e] himself." The women said he "was talking to them about '. . . killing people.'" We reject appellant's claim that his "indecent exposure acts were not connected to his . . . statements." Appellant's statements immediately preceded his acts and were an integral part of the indecent exposure offense. It is reasonable to infer that appellant intended his statements to intensify the fear and shock the women would experience upon witnessing his exposure. "'It is generally agreed that the person exposing seeks some reaction from the person exposed to, although exactly what reaction is not clear. . . . It is doubtful that the reaction sought is one of pleasure and in many cases it seems to be intended to evoke fear and shock. . . ." (In re Lynch (1972) 8 Cal.3d 410, 430, italics added, superseded by statute on other grounds as explained in In re Palmer (2021) 10 Cal.5th 959, 974-975.)
A rational trier of fact could conclude beyond a reasonable doubt that appellant's statements about "'killing people,'" together with his acts of indecent exposure, would lead a reasonable woman to believe that she was "impliedly threatened . . . with the use of force or violence likely to produce substantial physical harm in a manner that [she] would believe and expect the force or violence would be used." (§ 2962, subd. (e)(2)(Q).)
Disposition
The order appealed from is affirmed.
I concur: CODY, J.
GILBERT, P. J.
I respectfully dissent. I appreciate the majority's point of view. Nevertheless, I do not believe the prosecution proved beyond a reasonable doubt that Jesus Javier Boytes meets the criteria of Penal Code section 2962, subdivision (e)(2)(Q). The People and the defense draw the same conclusion.
The evidence was submitted on a police report that stated Boytes said "something about killing people." The trial court had before it the same evidence we reviewed. There was no testimony from the witnesses at the Crossroads Pregnancy Center. We have no knowledge of the context in which Boytes said "something about killing people." We do not know if he was referring to himself as killing people or expressing regret that others are killing people. The police report does not indicate whether the witnesses at the pregnancy center were in any state of fear or apprehension.
Dr. Rassti testified that Boytes's severe mental disorder was a cause or aggravating factor in the commission of the crime of indecent exposure. She noted that Boytes had a history of violence, but, as the People point out, none of the materials Rassti considered contained any information that Boytes was violent. "Dr. Rassti acknowledged that indecent exposure generally does not result in physical harm to another person." Rassti also said Boytes's statement at the pregnancy center made it difficult for her to assess his intent.
On this record, I would reverse.