Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050283606
Jones, P.J.
Billy Ray Carter appeals from an order revoking his outpatient status. His counsel on appeal filed an opening brief that asked this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. This court reviewed the record, identified two arguable issues, and asked the parties to submit supplemental briefs. Having now considered those briefs, we conclude the appeal is moot and will dismiss.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1984, appellant pleaded guilty to assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(2).) The trial court then found appellant not guilty by reason of insanity. He was committed to a state mental hospital for treatment.
Unless otherwise indicated, all further section references will be to the Penal Code.
Over the years, appellant’s commitment was extended several times and his custody status was changed from inpatient to outpatient status and back.
In July 2006, a petition was filed to extend appellant’s commitment yet again. On August 29, 2006, appellant filed an application for unconditional release and a request that the district attorney be required to prove “beyond a reasonable doubt to a unanimous jury” that he remained a danger to society.
On November 2, 2006, the court conducted a hearing to determine whether appellant’s commitment should be extended. Appellant agreed to the extension and the local conditional release program (CONREP) agreed to accept him back into the outpatient program. That same date, the court extended appellant’s commitment two years to December 5, 2008.
Appellant was released from Napa State Hospital and placed in outpatient treatment under the supervision of CONREP. But appellant refused to comply with the terms and conditions of the program. Accordingly, on November 27, 2006, mental health officials asked that appellant’s outpatient status be revoked.
On December 8, 2006, appellant filed a “request for jury trial and to be unconditionally released . . . .”
On March 26, 2007, the court conducted a hearing on the request to revoke. Appellant remained unwilling to comply with the conditions of CONREP and he did not contest the petition. Accordingly, the court revoked appellant’s outpatient status and recommitted him to the Department of Mental Health for the balance of his term. The court also denied appellant’s request for a jury trial and denied his request for an unconditional release.
Appellant filed an appeal from the March 26, 2007 ruling. Subsequently, appellant’s court-appointed counsel on appeal filed an opening brief that asked this court to conduct an independent review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 . As is permitted under that procedure, (see People v. Kelly (2006) 40 Cal.4th 106, 124) appellant filed a pro se brief. This court reviewed the record independently and asked the parties to submit supplemental briefs discussing the following two issues: “1) Should the extension of Carter’s commitment to December 5, 2008 be reversed because the trial court committed constitutional error when it accepted Carter’s November 2, 2006 agreement to the extension without advising him of the direct consequences of his agreement and without obtaining a knowing and voluntary waiver of his constitutional rights, including his right to a jury trial? (Pen. Code, § 1026.5, subds. (b)(4), (b)(7).) [¶] 2) Should Carter’s requests for a jury trial and for release from custody in December 2006 and March 2007 (renewing the initial request he made in August 2006) be construed as motions to withdraw his agreement to the extension, and should the trial court be directed to grant those motions because: [¶] a) When the court accepted Carter’s agreement to the extension, it failed to advise him of the direct consequences of his agreement and failed to obtain a knowing and voluntary waiver of his constitutional rights, including his right to a jury trial? [¶] b) Carter agreed to the extension on the understanding that he would be placed in CONREP and that placement was promptly rescinded? [¶] c) Carter agreed to the extension based on representations about the conditions of his CONREP placement that were not fulfilled?”
Both parties submitted briefs in response to our request.
II. DISCUSSION
A. Whether the November 2, 2006 Commitment Order is Valid
The first issue is whether the trial court committed constitutional error when it accepted Carter’s agreement to the extension of his commitment without advising him of the direct consequences of his agreement and without obtaining a knowing and voluntary waiver of his Constitutional rights, including his right to a jury trial. (§ 1026.5, subds. (b)(4), (b)(7).)
After reviewing the briefs submitted by the parties, we conclude we lack the power to consider that issue.
The order extending appellant’s commitment was filed on November 2, 2006. That order was appealable, (People v. Crosswhite (2002) 101 Cal.App.4th 494, 501, fn. 3) and appellant did not appeal it. He specifically appealed only the court’s subsequent March 26, 2007 order revoking his outpatient status. A timely notice of appeal is an essential component of appellate jurisdiction. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 670.) As another court stated in similar circumstances, “The earlier [order has] long since become final and cannot be belatedly reviewed now.” (In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331, fn. omitted.)
None of the arguments appellant makes convince us that we have jurisdiction to review the earlier order from which no appeal was taken. First, appellant argues the court’s failure to explain the consequences of his plea or explain and obtain a waiver of constitutional rights at the November 2, 2006 hearing rendered the commitment order “unauthorized” and “void” and thus subject to attack at any time. Appellant has not cited any authority that holds a failure of this nature renders an order “unauthorized” or “void” and the cases he does cite do not so hold. Appellant relies on People v. Price (2004) 120 Cal.App.4th 224, 243, however that case simply holds that a sentence that is “unauthorized” i.e., that “could not lawfully be imposed under any circumstances” may be corrected at any time. Here, it is undisputed that the trial court could lawfully extend appellant’s commitment under section 1026.5. The only possible issue is whether the court erred by not ensuring appellant understood and waived his rights. Appellant also relies on People v. Collins (2001) 26 Cal.4th 297, 311; however, that case simply holds that the failure to obtain a waiver of the right to a jury trial is reversible without any showing of prejudice. That case does not hold or suggest that a judgment obtained without a knowing waiver of constitutional rights is void.
In fact, a substantial body of case law indicates a prior judgment or order is not “unauthorized” or “void” simply because it was obtained without appropriate waivers. The rule that a defendant must understand the consequences of his plea and understand and waive his constitutional rights was established through the venerable Boykin/Tahl line of authority. (Boykin v. Alabama (1969) 395 U.S. 238, In re Tahl (1969) 1 Cal.3d 122; see People v. Allen (1999) 21 Cal.4th 424, 434-435.) Because prior convictions frequently are used to enhance the punishment in subsequent cases, the question arose whether a defendant could attack a prior judgment where the Boykin/Tahl procedures were not followed. When faced with that issue, our Supreme Court did not rule that a prior conviction obtained in violation of Boykin/Tahl principles was void or unauthorized. Instead, the court ruled a defendant could attack the validity of the prior conviction, but only by following specific procedures. (People v. Sumstine (1984) 36 Cal.3d 909, 922-924.) The fact that a prior judgment can be challenged, but only by following specific procedures plainly means that such a judgment is not “void” or “unauthorized.”
Appellant also suggests that this court has the discretion to reach the issue even if he did not challenge it in the court below, and he urges us to exercise that discretion. In fact, we lack the jurisdiction to review an appealable order that has not been appealed. (Hollister Convalescent Hosp., Inc. v. Rico, supra, 15 Cal.3d at p. 670.) In any event, to the extent we have such discretion, we decline to exercise it here.
B. Whether Appellant’s Requests Should be Construed as Motions to Withdraw
The second issue is whether appellant’s December 2006 and March 2007 requests for a jury trial and for release from custody should be construed as motions to withdraw his earlier agreement to extend his commitment under the circumstances of this case.
After reviewing the briefs submitted, we conclude that issue is moot.
“[A]n 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. A reversal would be without practical effect, and the appeal will therefore be dismissed.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 749, p. 814.)
Here, appellant’s commitment was extended to December 5, 2008 and that date has already passed. Even if we were to conclude that the court should have construed appellant’s requests as motions to withdraw, we could grant no effective relief. The issue we identified is moot.
We note that we served our request for supplemental briefs in December 2007. The need to augment the record and numerous requests for extensions of time delayed the briefing process significantly.
Appellant urges us to ignore the mootness problem because the issue presented here could easily recur and yet evade review. (Cf. Conservatorship of David L. (2008) 164 Cal.App.4th 701, 709.) We simply disagree. The issue we identified was based on the highly unusual facts presented and is unlikely to recur any time soon. Furthermore, the appellate courts of this state regularly address the propriety of granting or denying motions to withdraw. (See, e.g., People v. Holmes (2004) 32 Cal.4th 432, 443; People v. Mickens (1995) 38 Cal.App.4th 1557, 1561.)
This court lacks the power to provide appellant any effective relief. The matter is moot and should be dismissed. (People v. Lindsey (1971) 20 Cal.App.3d 742, 745.)
C. Additional Issues
As is permitted under the Wende procedure, (People v. Kelly, supra, 40 Cal.4th at p. 124) appellant filed a pro se brief with this court. While framed as two issues, appellant in essence raises a single argument. He contends section 1026.2, which sets forth the procedure that must be used to determine whether a person has been restored to sanity, is unconstitutional. However, the only issue that is even arguably before this court is whether the trial court correctly revoked appellant’s outpatient status. That procedure is governed by section 1608. This appeal does not provide an opportunity to determine the constitutionality of section 1026.2.
III. DISPOSITION
The appeal is dismissed as moot.
We concur: Simons, J., Needham, J.