Opinion
C095227
03-29-2023
THE PEOPLE, Plaintiff and Respondent, v. TRACY LEE ZWERENZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. PC20060359
KRAUSE, J.
Following a court trial on September 28, 2021, the trial court renewed defendant Tracy Lee Zwerenz's mentally disordered offender (MDO) status for an additional year. (Pen. Code, §§ 2972, 2972.1.) The parties agree, as do we, that the trial court erred by failing to advise defendant directly of his jury trial right and to obtain a waiver of that right directly from him. (People v. Blackburn (2015) 61 Cal.4th 1113, 1116 (Blackburn).) Nonetheless, because that recommitment order expired and has been replaced by another order, we will dismiss this appeal as moot.
Undesignated statutory references are to the Penal Code.
BACKGROUND
Defendant was convicted of two counts of sexual battery (§ 243.4, subd. (a)) following his assault of two 17-year-old female victims. He suffers from paraphilia, pedophilia, and depressive disorder and was determined to be an MDO. Defendant received treatment at various facilities and was admitted to Coalinga State Hospital as an MDO in 2013, where he has remained with his MDO status being extended multiple times under section 2972. This appeal arises from the granting of a November 3, 2020 petition for recommitment, requesting an extension of his MDO status for another year.
On December 4, 2020, the trial court announced that pursuant to an administrative order from the presiding judge, there would only be court trials in December and January. The parties agreed these types of cases always proceeded by court trial and stipulated the trial would be held via Zoom. It does not appear defendant was present for this hearing, and the trial court did not advise him of his jury trial right under section 2972 nor take his personal waiver of that right.
The court trial on the MDO recommitment ultimately occurred on September 28, 2021. Because defendant does not challenge the sufficiency of the evidence supporting the trial court's recommitment order, we will not describe the evidence presented. The trial court issued an order extending defendant's MDO commitment until January 3, 2022. Defendant timely appealed. On January 11, 2022, and following completion of another bench trial, the trial court again extended defendant's MDO commitment to January 3, 2023. Appellate briefing in this matter was completed February 15, 2023.
DISCUSSION
"The Mentally Disordered Offenders Act (Pen. Code, § 2960 et seq.) provides for involuntary civil commitment as a condition of parole for prisoners who are found to have 'a severe mental disorder' if certain conditions are met. (§ 2962, subds. (a)-(f).) The commitment is for a term of one year and may be extended annually for an additional year on petition of the district attorney. [Citation.]" (People v. Dunley (2016) 247 Cal.App.4th 1438, 1442, fns. omitted; see §§ 2970, subd. (b), 2972, subds. (a), (b).) The trial on a petition to extend the commitment "shall be by jury unless waived by both the person and the district attorney," and the "court shall advise the person of the right to be represented by an attorney and of the right to a jury trial." (§ 2972, subd. (a).) The advisements regarding this right must be given directly to the MDO defendant and the attendant waiver must be taken directly from that MDO defendant. (Blackburn, supra, 61 Cal.4th at p. 1116.) It is only where the trial court determines that an MDO "defendant lacks the capacity to make a knowing and voluntary waiver" that the court may accept a jury trial waiver from the MDO defendant's attorney. (Ibid.)
Here, the trial court neither directly advised defendant of his right to a jury trial nor did the court take a jury trial waiver directly from defendant. Rather, the trial court accepted the parties' mistaken representation that recommitment proceedings always proceeded by court trial. Nor is there a suggestion that defendant was incapable of making a knowing and intelligent waiver. This was error requiring automatic reversal. (Blackburn, supra, 61 Cal.4th at pp. 1116-1117, 1132-1133, 1136.)
However, because the recommitment order at issue has already expired and been replaced by a new order, we recognize that these issues have become moot. (People v. Dunley, supra, 247 Cal.App.4th at p. 1445 ["[a] case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief"]; see also People v. Alsafar (2017) 8 Cal.App.5th 880, 886 [where prosecutor timely files a recommitment petition and the involuntary commitment was never discontinued, court does not lose jurisdiction under the MDO Act (§ 2960 et seq.).) Accordingly, we will dismiss the appeal as moot.
DISPOSITION
The appeal is dismissed.
We concur: ROBIE, Acting P. J., RENNER, J.