Opinion
C087727
02-03-2020
THE PEOPLE, Plaintiff and Respondent, v. GREGORY PECK BERRY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 92F11142, 94F01899)
Defendant Gregory Peck Berry appeals from an order extending his commitment to the Department of Mental Health by two years. That order, however, set a maximum commitment date of September 18, 2019. Briefing concluded in this case on July 8, 2019, and the case was assigned to the author on October 31, 2019. With the maximum commitment date come and gone, we asked the parties why this appeal should not be dismissed as moot. (See People v. Dunley (2016) 247 Cal.App.4th 1438, 1445 ["A case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief"]; People v. Merfield (2007) 147 Cal.App.4th 1071, 1074 ["the appeal from a commitment order following such a hearing is moot once the commitment period has expired"].)
Defendant responds that the issue raised on appeal will likely reappear at his next commitment extension trial. He, therefore, asks that we exercise discretion to consider the appeal on the merits. The People maintain that no such issue, likely to evade appellate review, exists. We agree with the People.
In his original briefing, defendant had argued that reversal is required because the trial court improperly admitted case specific and testimonial hearsay. He cites in support People v. Sanchez (2016) 63 Cal.4th 665, 686, which held an expert may not "relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (See also People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 504 [applying Sanchez in the context of a state hospital commitment].)
Defendant challenged the introduction of hearsay evidence from several testifying experts. But no objection was raised to that hearsay testimony. Indeed, defense counsel cited Sanchez to the trial court explaining, "I clearly could have objected under hearsay," but "for tactical reasons" did not because it would have resulted in the prosecution producing the individuals who were the source of the hearsay.
We do not think this issue is likely to evade appellate review. We therefore decline to exercise discretion to consider the appeal on its merits, and the appeal will be dismissed as moot.
DISPOSITION
The appeal is dismissed.
/s/_________
MURRAY, Acting P. J. We concur: /s/_________
RENNER, J. /s/_________
KRAUSE, J.