Opinion
A148209
05-30-2018
THE PEOPLE, Plaintiff and Respondent, v. KERON HAYNES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RM05243718)
Keron Haynes appeals from a final judgment of recommitment for treatment under the Mentally Disordered Offender Act (MDO Act or the Act) (Pen. Code, § 2960 et seq.). He contends his recommitment was unauthorized after the underlying felony offense on which his original commitment was based was reduced to a misdemeanor under Proposition 47, the Safe Neighborhood and Schools Act. (Cal. Const., art. II, § 10; see Pen. Code, § 1170.18.)
All statutory references are to the Penal Code unless otherwise indicated.
Because the trial court granted appellant's motion to dismiss the district attorney's subsequent petition for recommitment, and appellant has been released, we find that his claim is moot. We will therefore dismiss the appeal.
FACTS AND PROCEEDINGS BELOW
On January 19, 2007, appellant Keron Haynes was sentenced to state prison for 18 months for attempted grand theft. (§§ 664 & 487, subd. (c).) The essence of appellant's felony offense was that on March 24, 2006, "he grabbed a woman's purse while she was pumping gas into her car." The offense qualified appellant for treatment under the MDO Act because it was one "in which the perpetrator expressly or impliedly threatened another with the use of force or violence likely to produce substantial physical harm in such a manner that a reasonable person would believe and expect that the force or violence would be used." (§ 2962, subd. (e)(2)(Q).) Accordingly, appellant was committed to Atascadero State Hospital for treatment as prescribed by the MDO Act. (§ 2962.) On April 10, 2010, four months before expiration of appellant's parole on August 2, 2010, the Alameda County District Attorney filed a petition to recommit appellant for treatment under the Act for one year, commencing upon the expiration of his parole. (§ 2970.) After a court trial, the district attorney's petition was granted. Thereafter, the district attorney annually filed and the court granted recommitment petitions pursuant to section 2972 for the following five years.
In his opening brief, appellant notes that a prior felony conviction in Alameda County Superior Court case No. H2064, for grand theft from the person was also reduced to a misdemeanor, and at the hearing on appellant's first motion to dismiss the recommitment petition both parties erroneously assumed that prior offense was the felony that qualified for reduction to a misdemeanor. However, appellant says, he was not sentenced to prison in that proceeding. At the hearing on appellant's second motion to dismiss, appellant informed the court and the People that the qualifying conviction was actually a different Alameda County case (No. 52333). In any event, the district attorney did not at any hearing dispute that the qualifying felony conviction had been reduced to a misdemeanor under Proposition 47.
On April 20, 2015, the district attorney filed a sixth recommitment petition. At the outset of trial on that petition, which was conducted by the Honorable Vernon Nakahara, appellant moved to dismiss the petition on the ground that on August 17, 2015, his application to have his underlying felony conviction designated a misdemeanor pursuant to Proposition 47 (§ 1170.18, subd. (f)) was granted.
In order to provide the district attorney time to prepare a response to appellant's motion to dismiss the recommitment petition, the court continued the hearing on that motion to October 2, 2015. Appellant waived his right to a jury trial, and the court received evidence pertaining to the petition, and then continued the trial several times until after the court received the district attorney's opposition to appellant's motion to dismiss and appellant filed a response. Evidently, the continuances had been sought and were granted due to the expectation of a ruling by the Fourth Appellate District in the pending appeal in People v. Stevens (Feb. 18, 2016, D068139) [nonpub. opn.] (Stevens), which presented the same legal question at issue in this case.
The opinion in Stevens issued on February 18, 2016 and found that designation of an MDO's underlying felony as a misdemeanor operated to invalidate the recommitment to the State Hospital. (See Stevens, supra, D068139.) However, as the parties did not anticipate, the opinion was not certified for publication. At the hearing on February 26, Judge Nakahara acknowledged an unpublished opinion is "not binding" but nonetheless accepted the copy proffered by counsel. Judge Nakahara did not, however, find the opinion persuasive. Recognizing that there was little guidance in the caselaw and "hop[ing] that we get some appellate decision very quickly," Judge Nakahara denied appellant's motion to dismiss the petition because "I don't think Prop 47 took what we're talking about here into consideration when it was presented to the voters," and he did not believe MDO cases "fit in the normal rubric of what we do on the criminal side.
On April 22, 2016, appellant filed timely notice of this appeal from that ruling.
On April 26, 2016, four days later, the district attorney filed another petition pursuant to section 2972 to recommit appellant for a seventh one-year commitment and the trial on that petition—which was conducted by the Honorable Jeffrey W. Horner—was set for July 18. Before commencement of that trial, appellant again filed a motion to dismiss the recommitment petition on the same ground he previously asserted in this case. At the July 19, 2016 hearing on the motion, Judge Horner determined that the doctrine of collateral estoppel did not bar relitigation of the issue decided by Judge Nakahara. Judge Horner also asked for a copy of the unpublished opinion in Stevens, stating "I'm well aware of the fact that I cannot cite it because it's unpublished, but I don't think there's anything precluding me from reading it and seeing if there's anything in the logic of the opinion that would sway me." Asked by Judge Horner whether it would be appropriate for him to consider the unpublished opinion, the district attorney responded that it was "perfectly appropriate." Judge Horner agreed, stating that the "rules allow the court to consider an unpublished opinion, but if it's logical and persuasive, and if there are authorities cited within the opinion that, themselves, are published or citable, the court can do that."
After hearing the arguments of counsel, Judge Horner accepted the reasoning of the unpublished opinion in Stevens and the case it cited and ordered the director of Atascadero State Hospital to release appellant at the end of his then current commitment.
DISCUSSION
Appellant acknowledged in his opening brief that the July 19, 2016 order rendered this appeal moot but contends we should nevertheless decide it because the important issue it presents "is one likely to recur while evading appellate review [citations] and involves a matter of public interest." (People v. Cheek (2001) 25 Cal.4th 894, 897-898; accord, People v. Dunley (2016) 247 Cal.App.4th 1438, 1442-1443, 1455.)
On January 17, 2017, after appellant filed his opening brief in this appeal, the same division of the Fourth Appellate District that issued the unpublished opinion in Stevens issued a published opinion, People v. Goodrich (2017) 7 Cal.App.5th 699 (Goodrich). Goodrich reached the opposite result of that in Stevens on the basis of different reasoning.
The panels of the division that decided the unpublished opinion in Stevens and the published opinion in Goodrich were not identical. Stevens was authored by Justice Huffman and concurred in by Acting Presiding Justice Benke and Justice Haller. The opinion in Goodrich was by Justice Aaron, and concurred in by Acting Presiding Justice Nares and Justice Haller.
In his respondent's brief, the Attorney General asked us to dismiss the appeal not only because the appeal is moot but also due to the fact that, as explained in Goodrich, "a qualifying felony conviction was required only for his initial commitment as an MDO; it was not required for the recommitment from which he appeals."
In his reply brief, appellant argued that the defendant in Goodrich did not invoke and the court did not consider the large body of case law invoked in the present case, both at trial and in this appeal, including opinions of the California Supreme Court—particularly In re Bevill (1968) 68 Cal.2d 854 (Bevill) and In re Smith (2008) 42 Cal.4th 1251 (Smith), establishing that the validity of a commitment or recommitment for mental health treatment in the state hospital depends on the continuing validity of the underlying offense upon which the commitment or recommitment is predicated. Citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456, appellant argued that, since the case law he relies upon was relied upon by the trial court and is apposite, we must be guided by those cases rather than by the opinion of the intermediate appellate court in Goodrich.
On January 10, 2018, we directed the Attorney General to file a supplemental brief responding to the arguments made in appellant's reply brief, and provided appellant an opportunity to respond to the Attorney General's supplemental brief.
In Goodrich, the Fourth District affirmed a ruling granting the People's motion for recommitment of an MDO whose underlying felony theft offense had been reclassified as a misdemeanor under Proposition 47. Reclassification of the offense as a misdemeanor did not preclude recommitment as an MDO, the court reasoned, because the prior felony conviction is a "static" factor not considered at a recommitment hearing, which focuses instead on current mental state and dangerousness. The court pointed out that in 2008, when Goodrich was initially committed as an MDO pursuant to section 2962, he was determined to have met all six of the criteria allowing for an MDO commitment under that statute; that is, psychiatric or psychological determinations " '[(1)] that the prisoner has a severe mental disorder, [(2)] that the disorder is not in remission or cannot be kept in remission without treatment, [(3)] that the disorder was a cause of or an aggravating factor in an enumerated crime [(4)] for which the prisoner was sentenced to prison, [(5)] that the prisoner has been in treatment for the disorder for 90 days or more in the year preceding release on parole, and [(6)] that the prisoner presents a risk of substantial danger of physical harm to others because of the disorder.' [Citation.]" (Goodrich, supra, 7 Cal.App.5th at p. 707, citing, inter alia, § 2962, subd. (d)(1).) Therefore, at the time he was initially committed, Goodrich satisfied the criteria for commitment.
Goodrich's recommitment was governed by sections 2970 and 2972. Section 2970 required the People to file a petition for continued involuntary treatment of Goodrich as an MDO for an additional year with a supporting affidavit specifying that treatment after release on parole was continuously provided him by the Department of State Hospitals, and also specifying that Goodrich " 'has a severe mental disorder, that the severe mental disorder is not in remission or cannot be kept in remission if [his] treatment is not continued, and that, by reason of his . . . severe mental disorder, [Goodrich] represents a substantial danger of physical harm to others.' [Citation.]" (Goodrich, supra, 7 Cal.App.5th at p. 710, quoting § 2970, subd. (b).) The court added that, "[p]ursuant to section 2972, subdivision (c), if, at the hearing on the People's petition pursuant to section 2970, 'the court or jury finds that the patient has a severe mental disorder, that the patient's severe mental disorder is not in remission or cannot be kept in remission without treatment, and that, by reason of his or her severe mental disorder, the prisoner represents a substantial danger of physical harm to others,' the court must order the MDO to be recommitted." (Id. at pp. 710-711, quoting § 2972, subd. (c).)
The Goodrich court's point was that under the statutory framework "there is no requirement that the People present evidence to establish the existence of the three 'static' criteria (i.e., that the mental disorder was a cause or an aggravating factor in an enumerated crime; that the individual was sentenced to prison for the crime; and that the individual had been in treatment for the disorder for 90 days or more in the year preceding his or her release on parole) at a recommitment proceeding. Rather, once an individual has been determined to be an MDSO and has been properly committed in an initial commitment proceeding, the only things that must be established in a recommitment proceeding are 'that the patient has a severe mental disorder, that the patient's severe mental disorder is not in remission or cannot be kept in remission without treatment, and that by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others. (§ 2972, subd. (c).)" (Goodrich, supra, 7 Cal.App.5th at pp. 710-711; see Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1058, 1062 [holding that petitioner "could not properly challenge whether he committed an enumerated offense justifying his initial MDO commitment," which was a static criterion, after first year of that commitment], disapproved on another ground in People v. Harrison (2013) 57 Cal.4th 1211, 1230, fn. 2.)
Thus, the Goodrich court emphasized that, at Goodrich's recommitment proceeding, "the court was not required to consider whether [he] had served a sentence for any offense. Goodrich's current commitment is not predicated upon his felony conviction; rather it is predicated on his present mental state and dangerousness. His prior felony conviction is not a factor bearing on his current commitment. It is undisputed that, at the time he was initially committed as an MDO, he had suffered a felony conviction for which he served a sentence in prison and that the initial commitment was proper. Nothing about Proposition 47 changes this." (Goodrich, supra, 7 Cal.App.5th at p. 711.)
As the Goodrich court saw it, Goodrich was seeking "a retroactive collateral change to his initial commitment as an MDO as a result of having obtained relief pursuant to section 1170.18, subdivision (f). However, there is no indication that the voters, in passing Proposition 47, intended for its provisions to have the retroactive collateral consequence that Goodrich advances. To the contrary, the procedures set forth in section 1170.18 that must be followed to obtain the resentencing and reclassification benefits of Proposition 47 indicate that the electorate intended a specific, limited prospective application of the relief available under the new law. [Citations.]" (Goodrich, supra, 7 Cal.App.5th at p. 711.)
The court found further indication that voters did not intend for Proposition 47 to have the effect Goodrich proposed from the express intent of the proposition itself, which was " ' "to reduce[] penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes." ' [Citation.]" (Goodrich, supra, 7 Cal.App.5th at p. 711.) However, as the court pointed out, an MDO is by definition "a person who not only has a 'severe mental disorder,' but who has served a prison sentence as a result of committing a serious or violent offense punishable by prison (i.e., one of the statute's serious or violent enumerated offenses or any other felony offense that involved violence or serious threats), and who continues to represent a 'substantial danger of physical harm to others' because of the disorder. [Citations.] Proposition 47 was intended to reduce penalties for individuals who commit crimes that are not serious or violent, and, therefore, are not likely to pose a danger of physical harm to others. To apply Proposition 47 retroactively for the purpose of invalidating an initial MDO commitment long after it was properly imposed would be at odds with the purpose intended by the voters." (Ibid.; cf. People v. Valencia (2017) 3 Cal.5th 347, 363-364, 384 [purpose of Proposition 47 was to reduce " 'penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes' "; Voter Information Guide "specifically declared that the 'act ensures that sentences for people convicted of dangerous crimes . . . are not changed' "].)
In addition, as earlier noted, appellant's contention that Goodrich was wrongly decided—and that we should address appellant's contention rather than dismiss the appeal as moot—is based on that court's failure to consider numerous opinions, particularly those of the California Supreme Court in Bevill, supra, 68 Cal.2d 854 and Smith, supra, 42 Cal.4th 1251, which emphasize that the validity of an involuntary civil commitment depends entirely upon the continuing validity of the requisite prior conviction. Those cases, however, involved individuals committed under various civil commitment statutes whose criminal convictions were subsequently found to have been invalid at the outset. (See, e.g., Smith, at p. 1255 [civil commitment of petitioner as a sexually violent predator was not authorized where, after proceedings were initiated against him, felony conviction on which his custody was based when proceedings were commenced was reversed on appeal]; Bevill, at p. 863 [petitioner's civil commitment as a mentally disordered sex offender was invalid where his underlying conviction was based on a statute subsequently declared unconstitutional].)
Other opinions appellant cites for this proposition are People v. J.S. (2014) 229 Cal.App.4th 163, 171; People v. Crivello (2011) 200 Cal.App.4th 612, 617; In re Franklin (2008) 169 Cal.App.4th 386, 391-393; People v. Greene (1973) 34 Cal.App.3d 622, 656; People v. Jasso (1969) 2 Cal.App.3d 955, 968-969.
In short, because we agree with the Attorney General that appellant's claim has not evaded review and indeed was specifically rejected in Goodrich—with which we agree—we conclude the appeal must be dismissed as moot. (See People v. Cheek, supra, 25 Cal.4th at pp. 897-898; People v. Dunley, supra, 247 Cal.App.4th at pp. 1442-1443.)
DISPOSITION
The appeal is dismissed as moot.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.