Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC262242
Duffy, J.
Defendant Oscar Abuslin challenges the trial court’s order under Penal Code sections 2970 and 2972 extending for one year his involuntary commitment as a mentally disordered offender (MDO). He contends that he was erroneously deprived of a jury trial and that the evidence was insufficient to sustain the order as to the element of his substantial danger to others by reason of his severe mental disorder. (§ 2972, subd. (c).) Because the order extending defendant’s commitment expired on September 29, 2008, and because we are not convinced that the appeal presents issues of important public interest or that are likely to recur and yet evade review, we conclude that the appeal is now moot and dismiss it.
Further statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF THE CASE
On September 17, 2002, defendant, who was homeless, was riding on a public bus. He rang the signal to indicate that he wanted to get off at the next stop. When the driver stopped, defendant went to the front of the bus to get off. As he approached the door, he reached past the driver and grabbed three bus passes worth $4.00 apiece. As he did so, the driver tried to grab defendant’s hands to stop him from taking the passes but he pulled away and the driver fell back against her side window. Afraid that defendant would reach for her face, the driver covered it with her hands and arms to protect herself. Defendant appeared confused and he retreated to the back of the bus but then got off when the driver opened the door. Defendant tore up the bus passes as he got off the bus.
Defendant later pleaded no contest to theft in violation of sections 484/487, subdivision (c). On November 22, 2002, the trial court ordered defendant to serve 99 days in jail, all of which he had already served or was credited, and placed defendant on three years formal probation. The court also ordered that the “intensive mental health probation team” retain jurisdiction. On August 4, 2003, the trial court revoked defendant’s probation because he admitted having violated its terms by absconding from the psychological treatment facility in which he was residing. Defendant was sentenced to prison for a mitigated term of 16 months but the court temporarily stayed his transport to prison.
On November 18, 2003, the trial court calculated defendant’s credits and deemed his term to have been completed. That same day, the court ordered defendant to be evaluated as an MDO. Three days later, after having been evaluated, defendant was committed to Atascadero State Hospital under section 2962. At least twice thereafter, he was recommitted but discharged because there was no evidence that he posed a substantial danger of physical harm to others, one of the elements of MDO commitment. Defendant was apparently again admitted to Atascadero State Hospital on July 12, 2006, under section 2962. His then-current term was set to expire on his parole date of September 29, 2007.
On April 12, 2007, Dr. Robert S. Knapp, Acting Medical Director of Atascadero State Hospital, requested the District Attorney to file a petition to extend defendant’s involuntary commitment because hospital staff had “good cause to believe that [he] is a person whose severe mental disorder is not in remission and cannot be kept in remission if … treatment is not continued and [he] therefore qualifies for continued treatment under … section 2970.” The request was supported by Dr. Knapp’s evaluation of defendant, which confirmed these grounds and added that by reason of his severe mental disorder, defendant “represents a substantial danger of physical harm to others.” Dr. Knapp’s “Forensic Report” dated March 29, 2007 also confirmed that defendant suffered a severe mental disorder under section 2962 and had been subject to a “Lanterman-Petris-Short Conservatership” in addition to having been hospitalized “due to the severity of his psychiatric symptoms.” The report confirmed that defendant was “hearing voices” on the day of his interview and that he acknowledged that while he was not a “violent person and didn’t like fighting,” he “sometimes he gets into fights to protect himself.” It further noted that defendant “had threats and assaults previously during hospitalizations,” but that he had not had any such incidents “documented in the past year.”
Supporting the report’s conclusion that defendant “represents a substantial risk of physical harm to others due to his mental illness,” Dr. Knapp confirmed in his report that defendant “shows primitive fight or flight reaction” and “impulsive fight behavior with a history of threats and assault” and that while “his primary difficulty is a severe disability, he will require the recovery program . . . to learn a job and living skills to establish that he does not represent a substantial risk of physical harm to others.”
On May 18, 2007, the People petitioned under section 2970 to extend defendant’s involuntary commitment for one year beyond his parole date. The petition was supported by Dr. Knapp’s report. At the July 26, 2007 hearing on the petition, defendant was not present but his counsel waived his appearance and submitted the matter on the People’s unopposed petition. The trial court found the allegations of the petition to be true and sustained it, extending defendant’s commitment for one year, through September 29, 2008. The court’s written order found that defendant “continues to suffer from a severe mental disorder, that said mental disorder is not in remission, and that by reason of his mental disorder, [defendant] represents a substantial danger of physical harm to others.”
Defendant timely appealed. The record was filed in this court on October 23, 2007, after one extension of time granted to a court reporter. Defendant’s opening brief was filed on February 1, 2008, after one extension of time. This was followed by the filing of the respondent’s brief on July 3, 2008, after three unopposed extensions of time. The reply brief was filed on July 24, 2008. The case was placed on this court’s conference list dated August 7, 2008. The parties waived oral argument and the case was submitted by order filed on September 9, 2008.
On October 6, 2008, we requested supplemental briefing from defendant (optional to respondent) on the question whether the appeal had become moot, defendant’s extended commitment having expired on September 29, 2008. We further requested information on the status of any recommitment order. In response, defendant’s counsel indicated by letter only that neither he nor the “Sixth District Appellate Program” had “found evidence in the record of an order extending [defendant’s] commitment beyond September 29, 2008,” a conclusion that our own review of the record mirrors. Counsel’s letter raised no argument concerning the mootness question.
DISCUSSION
Defendant contends on appeal that he was erroneously deprived of a jury trial in the proceeding that resulted in the order extending his commitment under sections 2970 and 2972 and that there was insufficient evidence to support his recommitment. Specifically, he argues that it was the People’s burden to prove, among other things, that he posed a danger of physical harm to others as provided by statute and that Dr. Knapp’s report effectively shifted the burden to him on this element by concluding that defendant needed continued treatment to establish that “he [did] not represent a substantial risk of physical harm to others.”
Defendant does not claim ineffective assistance of counsel for his attorney either having waived his appearance at the proceeding or having submitted the matter on the People’s petition.
Both sections 2970 and 2972, which govern the proceedings on a petition for continued involuntary treatment under the MDO statutory scheme (§ 2960 et seq.), provide that the petitioner must specify and that it must be demonstrated to the trier of fact beyond a reasonable doubt that the prisoner has a severe mental disorder, that the disorder is not in remission or cannot be kept in remission absent continued treatment, and that “by reason of his or her severe mental disorder, the prisoner represents a substantial danger of physical harm to others.” (§§ 2970, 2972, subd. (c).) The proceedings are civil in nature and the prisoner has a right to be represented and the right to trial by jury. (§ 2972, subd. (a).) In general, trial must commence within 30 days before the prisoner would otherwise be released and the period of recommitment is for one year. Prior to the termination of a recommitment period, a succeeding petition for recommitment may be filed and is governed by the same procedures and requirements. (§ 2972, subd. (e).)
We decline to proceed to the merits of defendant’s contentions because we conclude that the appeal has been mooted by the expiration of defendant’s extended commitment under the order on appeal. “ ‘[A]lthough a case may originally present an existing controversy, if before decision it has, through act of the parties or other cause, occurring after the commencement of the action, lost that essential character, it becomes a moot case or question which will not be considered by the court. [Citations.]’ ” (Wilson v. L.A. County Civil Service Com. (1952) 112 Cal.App.2d 450, 453.) Generally, a case becomes moot “ ‘ “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” ’ [Citations.]” (Murphy v. Hunt (1982) 455 U.S. 478, 481.) Said otherwise, a “ ‘case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief. [Citation.]’ [Citation.]” (People v. Rish (2008) 163 Cal.App.4th 1370, 1380-1382 (Rish).) Although an appeal may be moot, an appellate court retains discretion to decide it if there is an important public interest involved that will continue to recur and evade review. (See e.g., County of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1006; In re Jody R. (1990) 218 Cal.App.3d 1615, 1622.)
Our Supreme Court discussed this exception to mootness in People v. Cheek (2001) 25 Cal.4th 894 (Cheek), in which the defendant challenged the annual review hearing afforded to defendants committed under the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code § 6600 et seq.). (Cheek, supra, at p. 896.) Before addressing the merits, the court recognized that the defendant’s two-year commitment under the statute had expired during the pendency of the appeal. (Id. at p. 897.) But because the issue presented there was one “likely to recur while evading appellate review” and involved a “matter of public interest,” the court exercised its discretion to address the issue for the guidance of future proceedings before dismissing the case as moot. (Id. at pp. 897-898; see also People v. Hurtado (2002) 28 Cal.4th 1179, 1186 [deciding issues raised by an expired commitment order under the SVPA because the “two-year limit on each commitment makes it likely that any appeal raising the issue would become moot before we could decide it”].) In conclusion, however, the court stated, “Because defendant’s confinement as a sexually violent predator terminated during the pendency of the appeal, we affirm the Court of Appeal’s judgment dismissing the appeal as moot.” (Cheek, supra, at p. 903.)
Although Cheek involved the SVPA rather the MDO statutory scheme, we find its rationale supporting dismissal equally applicable here. In People v. Fernandez (1999) 70 Cal.App.4th 117 (Fernandez), a case under the MDO law, we concluded that although the appeal was moot by reason of the expiration of the recommitment period, the issue presented there—whether the trial court’s failure to comply with statutory procedure concerning commencement of trial divested it of fundamental jurisdiction to proceed—should be addressed on the merits nonetheless because the defendant’s commitment period had been extended while the appeal was pending and therefore “our decision [might] still affect the lower court’s right to continue jurisdiction under the original commitment as well as the recommitment.” (Id. at pp. 134-135; see also Rish, supra, 163 Cal.App.4th at pp. 1380-1382 [question of trial court’s statutory and sua sponte duty under section 2972 to determine suitability for outpatient treatment was important issue capable of repetition yet evading review, justifying merits decision in otherwise moot appeal]; People v. Williams (1999) 77 Cal.App.4th 436, 441, fn. 2 [although appeal from MDO recommitment order was “technically moot,” the appeal raised issues that were “important and of continuing interest” justifying opinion addressing the merits].)
In contrast to those cases, defendant here does not claim the public interest exception to mootness or contend that we should decide this appeal despite its mootness. Moreover, the issues presented are particular to this case, are not likely to recur, do not go to fundamental jurisdiction, and are not novel questions of unsettled law. And because there is no evidence before us that defendant was recommitted while this appeal has been pending, a decision in this case would have no effect on any right of the trial court to continue jurisdiction on the original commitment in any later recommitment. (People v. Brandon (2008) 166 Cal.App.4th 238, 244-245 [to the extent appeal sought no appellate relief other than reversal of commitment order, it was moot].) We accordingly conclude that the appeal is moot and we decline to exercise our discretion to proceed to the merits despite this status.
DISPOSITION
The appeal is dismissed as moot.
WE CONCUR: Mihara, Acting P.J., McAdams, J.