Opinion
A155675
02-20-2020
THE PEOPLE, Plaintiff and Respondent, v. EDWARD CAGLE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR137908)
Edward Cagle appeals from an October 11, 2018 order recommitting him as a mentally disordered offender (MDO) and extending his period of commitment to a state hospital to December 11, 2019. Defendant argues the trial court improperly denied his Marsden motion; admitted hearsay in violation of the Evidence Code and defendant's right to due process; admitted case-specific hearsay during the testimony of the People's expert in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez); and abused its discretion in refusing to consider placing defendant on outpatient status. While this appeal was pending, defendant was recommitted as an MDO to a term expiring on December 12, 2020. This appeal is moot because any reversal cannot have a practical effect or provide defendant with effective relief (People v. Gregerson (2011) 202 Cal.App.4th 306, 321 (Gregerson)), and we accordingly dismiss the appeal.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
I. BACKGROUND
This is defendant's third appeal from orders recommitting him as an MDO. In People v. Cagle (Jan. 23, 2019, A149911) [nonpub. opn.] (case No. A149911), defendant appealed his recommitment order for December 2016 to December 2017, and, in People v. Cagle (Aug. 15, 2018, A153259) [nonpub. opn.] (case No. A153259), defendant appealed his recommitment order for December 2017 to December 2018.
On August 15, 2018, this court dismissed the appeal in case No. A153259, explaining that the order extending defendant's MDO commitment was not subject to the Anders/Wende review defendant's counsel sought. (People v. Cagle, supra, A153259.) (See, e.g., People v. Taylor (2008) 160 Cal.App.4th 304, 312-313.) In case No. A149911, after the parties agreed in supplemental briefing that the appeal was moot in light of defendant's recommitment from December 2017 to December 2018, we dismissed that appeal as moot on January 23, 2019. (People v. Cagle, supra, A149911.)
Anders v. California (1967) 386 U.S. 738 and People v. Wende (1979) 25 Cal.3d 436.
On June 6, 2018, the district attorney of Napa County filed the recommitment petition at issue here pursuant to Penal Code section 2970. A jury trial began on October 9, 2018. The People's case consisted of the testimony of forensic psychologist, Dr. Angie Shenouda. On October 11, 2018, the jury returned a verdict finding that defendant was an MDO, and the court extended his commitment through December 11, 2019. This appeal followed.
All further statutory references are to the Penal Code unless otherwise indicated.
Because briefing in this appeal was not completed until October 2019 and it appeared that defendant's one-year recommitment order would expire while this appeal was pending, we ordered the parties to submit supplemental letter briefs addressing whether this appeal was moot. In his letter brief, the Attorney General informed us that, on December 3, 2019, defendant was recommitted as an MDO from December 11, 2019 to December 11, 2020.
II. DISCUSSION
The Mentally Disordered Offender Act (§§ 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 the district attorney may petition to extend an MDO's commitment annually for additional one-year terms. (§§ 2970, 2972, subds. (a), (c), (e).)
As a general rule, " ' "the duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." ' " (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) Thus, an " 'action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events.' " (Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 866 (Building a Better Redondo).) Put another way, " '[a]n appeal should be dismissed as moot when the occurrence of events renders it impossible for the appellate court to grant defendant any effective relief.' " (Brown v. California Unemployment Ins. Appeals Bd. (2018) 20 Cal.App.5th 1107, 1116, fn. 6.) Here, we cannot provide defendant effective relief because the order he challenges has expired and he has been recommitted as an MDO.
Defendant contends that his appeal is not moot because when an MDO's prior commitment is found invalid on appeal, the MDO must be released from commitment pursuant to a subsequent recommitment order. However, the cases defendant cites to support his theory are inapt. In People v. Allen (2007) 42 Cal.4th 91, 101-105 (Allen), the Supreme Court held that the deadline to file a recommitment petition under section 2972, subdivision (e) was mandatory, not directory, and the People's failure to file a recommitment petition before the end of Allen's commitment period violated his due process rights and took him out of the jurisdiction of the MDO Act. The issue decided in Allen was whether the trial court could extend an involuntary MDO commitment where the recommitment petition had not been filed before the prior commitment terminated. (Allen, at p. 94.) In Blakely v. Superior Court (2010) 182 Cal.App.4th 1445, relying on Allen, the court invalidated an MDO commitment because the California Department of Corrections and Rehabilitation violated what the court interpreted to be a mandatory deadline under section 2962, subdivision (d)(1) requiring MDO evaluations and certification to occur prior to the person's parole release date. No such jurisdictional concerns exist here. Defendant does not dispute that the prosecutor timely filed a recommitment petition, and his involuntary commitment never terminated. Unlike the cases cited by defendant, the court did not lose jurisdiction under the MDO Act.
The court in People v. Gerard (2015) 243 Cal.App.4th 242, 245-247, explained that the Legislature's subsequent enactment of section 2963 provided an extension of the time to complete MDO certifications and evaluations under section 2962, allowing the Board of Parole Hearings to order a person to remain in custody for up to 45 days beyond the person's scheduled release date for full evaluation pursuant to section 2962, subdivision (d)(1), and any additional evaluations pursuant to section 2962, subdivision (d)(2).
Defendant urges us to exercise our inherent discretion to decide the Sanchez and Marsden issues in this appeal because they are important matters of public interest that are likely to recur yet evade review. The general rule of mootness "is tempered by the court's discretionary authority to decide moot issues." (Building a Better Redondo, supra, 203 Cal.App.4th at p. 867.) "When an action involves a matter of continuing public interest that is likely to recur, a court may exercise an inherent discretion to resolve that issue, even if an event occurring during the pendency of the appeal normally would render the matter moot." (Ibid.) In the MDO context—where the duration of the commitment at issue is often shorter than the appellate process—courts frequently exercise their discretion to decide technically moot questions of public interest. (See, e.g., People v. Harrison (2013) 57 Cal.4th 1211, 1217-1218 [scope of criteria that must be proved at a hearing challenging the initial MDO certification]; People v. Dunley (2016) 247 Cal.App.4th 1438, 1442-1443, 1445 [right not to testify at MDO recommitment proceedings]; People v. Rish (2008) 163 Cal.App.4th 1370, 1373, 1380-1381 [trial court's sua sponte duty in MDO proceedings to consider suitability for outpatient treatment]; People v. Williams (1999) 77 Cal.App.4th 436, 440, 441, fn. 2 [failure to meet statutory deadlines for MDO trial].)
Nonetheless, this appeal does not involve issues of public interest that are likely to reoccur and evade review. As demonstrated by the authorities defendant cites in his briefing, hearsay and Sanchez errors—including defendant's question as to whether Sanchez error occurs where an expert testifies to case-specific facts of which the expert does not have personal knowledge even if specific facts are independently proven by other evidence—are not issues that evade review. (See People v. Vega-Robles (2017) 9 Cal.App.5th 382, 413; People v. Stamps (2016) 3 Cal.App.5th 988, 996; People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 506.) Further, when defendant raised Sanchez error in one of his prior MDO recommitment order appeals, he conceded the Sanchez issues were moot after the applicable period of recommitment expired and that other published cases have addressed Sanchez.
Defendant argues that we should decide the Marsden issues he raises because whether his counsel was ineffective for failure to consult with a mental health expert and whether the court properly inquired into counsel's reasons for this failure are important public issues that will reoccur and evade review. Tactical decisions are counsel's responsibility, and disagreement between a defendant and counsel on such matters is generally not a basis for substitution of counsel under Marsden. (People v. Hill (1983) 148 Cal.App.3d 744, 753.) While section 2972, subdivision (b) affords an indigent MDO the right to appointed counsel in recommitment proceedings, it does not address the retention of mental health experts. Thus, resolution of the Marsden issues would be fact-driven. Because such resolution is unlikely to provide much future guidance, we decline to decide the issues notwithstanding their mootness. (See, e.g., MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 215 [declining to address moot questions "given the fact-driven nature of the questions presented"]; Giles v. Horn (2002) 100 Cal.App.4th 206, 228 [declining to decide a moot issue "dependent upon the specific facts of a given situation"].)
In any event, defendant's evidentiary and Marsden challenges would not warrant reversal. The Attorney General concedes error in the admission of hearsay from past reports that were prepared to support requests for defendant's MDO recommitments, but Dr. Shenouda interviewed defendant twice and personally observed and testified to his paranoia, disorganized thoughts, and delusions. She opined that defendant was schizophrenic based on review of his records and her interviews, and she personally observed sufficient symptoms to determine that he met the criteria for schizophrenia. She testified that medication had successfully targeted defendant's auditory hallucinations but not his delusions, disorganized thoughts, or paranoia, and that, based on her personal observations, defendant was not in remission. While Dr. Shenouda recited and considered defendant's past violent acts to opine on future dangerousness, and four of these were concededly established by hearsay, defendant admitted to Dr. Shenouda that he engaged in two other violent incidents in 2017, and admissible parts of medical progress notes document observations from one of these incidents. Dr. Shenouda also testified that defendant's current symptoms and lack of insight into his disease factored more heavily in her opinion of future dangerousness than past acts. Given the admissible evidence, defendant does not establish that it is more probable than not he would have achieved a more favorable result. (See People v. Flint (2018) 22 Cal.App.5th 983, 1003-1004 [erroneous admission of expert testimony containing inadmissible case-specific hearsay statements is reviewed under People v. Watson (1956) 46 Cal.2d 818, 836].) Similarly, even assuming statutory Marsden-like error occurred (§ 2972, subd. (b); cf. People v. Williams (2003) 110 Cal.App.4th 1577, 1588, 1591), defendant fails to establish that it is more probable than not he would have achieved a more favorable result had an expert been consulted. (Cf. Williams, at pp. 1592-1593 [applying Watson harmless error review to denial of an MDO's statutory right of self-representation].)
Finally, defendant argues that we should reach the merits of his appeal because he did not delay the completion of appellate briefing in this matter. As any reversal cannot have a practical effect or provide defendant with effective relief, we disagree. (Gregerson, supra, 202 Cal.App.4th at p. 321.) We also note that some passage of time in this appeal is attributable to the court's normal process, such as the time the trial court took to provide the record and the time this court took to address defendant's motion to augment the record. However, our opinion in case No. A149911 recognized the possibility of recurring mootness and stated that defendant may wish to file a motion for calendar preference in this appeal (People v. Cagle, supra, A149911, p. 2, fn. 3). Defendant's counsel in that case informed us that he intended to request calendar preference in this case when he filed the opening brief. He did not. Defendant filed an opening brief approximately one month late (warranting a default notice under California Rules of Court, rule 8.360(c)(5)), and the record does not reflect any opposition to the extensions of time this court granted for respondent's opening brief. Again, defendant is encouraged to file a request for calendar preference (California Rules of Court, rule 8.240) in any future appeals of his MDO recommitment orders.
III. DISPOSITION
The appeal is dismissed as moot.
/s/_________
BROWN, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
STREETER, J.