8 Cal. App. 5th 880
Cal. Ct. App.2017Background
- In 2009 Faris Alsafar was convicted of arson and later adjudicated a Mentally Disordered Offender (MDO); he was committed to a state hospital and subject to annual recommitment petitions.
- In 2015 the district attorney sought a second one-year extension under the MDO Act; Alsafar opposed and was called to testify over his objection at the recommitment hearing.
- Alsafar testified about his mental illness, substance history, and the circumstances of the arson; a forensic psychologist also testified the disorder was severe and not in remission.
- Alsafar appealed, arguing the court violated equal protection by compelling his testimony because persons found NGI have a statutory testimonial privilege not to be compelled to testify at recommitment hearings.
- After briefing, the court took judicial notice that Alsafar was later recommitted (dec. 6, 2016) without being forced to testify, rendering his appeal moot; the court nevertheless addressed the legal issue and adopted reasoning from a recent published opinion holding MDOs are similarly situated to NGIs and SVPs for the testimonial privilege.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appeal is moot | AG: Case is moot because Alsafar was subsequently recommitted and a decision would have no practical effect | Alsafar: Not moot because relief (rehearing) could have been effective if decided earlier; factual differences from Dunley | Court: Appeal is moot because Alsafar was recommitted without being compelled to testify, but court exercises discretion to resolve the legal issue as one capable of repetition yet evading review |
| Whether compelling MDO to testify violates equal protection / testimonial privilege | AG: MDOs are not similarly situated to NGIs; disparate treatment serves legitimate purposes; any error harmless | Alsafar: NGIs, SVPs, and MDOs are similarly situated re: testimonial privilege; compelling testimony violated equal protection | Court: Adopts Dunley reasoning that MDOs are similarly situated to NGIs and SVPs for the testimonial privilege; compelled testimony raises significant constitutional concerns, but the appeal dismissed as moot |
Key Cases Cited
- Hudec v. Superior Court, 60 Cal.4th 815 (Cal. 2015) (statutory testimonial privilege for NGI recommitment proceedings)
- People v. Dunley, 247 Cal.App.4th 1438 (Cal. Ct. App. 2016) (MDOs, SVPs, and NGIs similarly situated re: testimonial privilege; persuasive reasoning adopted)
- People v. Curlee, 237 Cal.App.4th 709 (Cal. Ct. App. 2015) (SVPs entitled to same testimonial protection as NGIs)
- People v. Landau, 246 Cal.App.4th 850 (Cal. Ct. App. 2016) (agreeing with Curlee that SVPs aligned with NGIs for privilege purposes)
- People v. Allen, 42 Cal.4th 91 (Cal. 2007) (MDO recommitment statutory timeline and jurisdictional consequences)
- People v. Gregerson, 202 Cal.App.4th 306 (Cal. Ct. App. 2011) (appellate exercise of discretion when issues are recurring and evade review)
- People v. Watson, 46 Cal.2d 818 (Cal. 1956) (harmless error standard referenced by respondent)
- Cramer v. Tyars, 23 Cal.3d 131 (Cal. 1979) (observing the probative value of a committee’s in-court testimony)
- People v. Haynie, 116 Cal.App.4th 1224 (Cal. Ct. App. 2004) (testimonial compulsion implicated even if testimony is not directly incriminating)