THE PEOPLE, Plaintiff and Respondent, v. FARIS NADER ALSAFAR, Defendant and Appellant.
No. G052951
Fourth Dist., Div. Three
Feb. 16, 2017
247 Cal.App.4th 880
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
O’LEARY, P. J.—The Mentally Disordered Offenders Act (
Faris Nader Alsafar appeals from an order extending his period of commitment to a state mental hospital as a mentally disordered offender (MDO). He contends the trial court violated his constitutional right to equal protection when it compelled him to testify over his objection at the trial to determine whether his commitment should be extended. Alsafar argues that because persons subject to civil commitment after being found not guilty by reason of insanity (NGI) have a statutory right, pursuant to
After briefing was completed in this case, our colleagues in Division Two of the Fourth District published People v. Dunley (2016) 247 Cal.App.4th 1438, 1447-1448 [203 Cal.Rptr.3d 335] (Dunley), holding MDO’s, SVP’s, and NGI’s are all similarly situated with respect to the testimonial privilege provided for in
We conclude the question of equal protection is a legal issue of continuing public importance that is likely to reoccur in MDO proceedings. A reviewing court may exercise its inherent discretion to resolve an issue rendered moot by subsequent events if the question to be decided is of continuing public importance and is a question capable of repetition, yet evading review. (Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195, 199 [31 Cal.Rptr.2d 506].) Because Alsafar has been recommitted without being required to testify, the issue of equal protection is now moot as to him.
A reversal can have no practical effect or provide Alsafar with effective relief. (People v. Gregerson (2011) 202 Cal.App.4th 306, 321 [135 Cal.Rptr.3d 188] (Gregerson).) Accordingly, we need not direct the court to hold a new hearing, but we will decide the briefed issue to clarify the law. We dismiss the appeal as moot.
I
In October 2009 Alsafar was convicted of arson of a structure (
In 2015, Alsafar opposed the district attorney’s petition for a second extension. At the trial on the petition, 30-year-old Alsafar was called as a witness by the district attorney and was forced to testify over his objection. Alsafar stated he suffered from depression, hallucinations, and schizophrenia. He admitted to previously using heroin and methamphetamine. He burned down the building in 2009 because he believed people were after him and the fire would let him escape. He made sure no one was inside the building before starting the fire and he called 911 afterwards to turn himself in.
Alsafar testified he was sent to Atascadero State Hospital (Atascadero). He believed his orthodontist was the devil because he heard his voice in the Orange County jail. He stated he met God on his third visit to the jail and
Alsafar stated he did not have a wellness recovery action plan (WRAP) because he did not like to attend group meetings. However, he took his medication voluntarily and planned to check himself into a hospital if needed. He had been homeless before and was familiar with how to receive public benefits and other life necessities from charity.
Forensic psychologist Jennifer Bosch testified based on her review of 4,600 pages of records, two interviews with Alsafar, and her observation of him during his trial testimony. She was originally appointed in 2013 to assess Alsafar. Bosch began her testimony by describing the circumstances of the underlying offense. She stated Alsafar was living in an abandoned building and he set fire to it because he believed it was owned by the Catholic church and children were being molested there. After watching the building burn, he took a bus to Newport Beach and called 911 to report the crime and turn himself in. She stated Alsafar had been a patient at Atascadero since 2010. Records showed he suffered from a schizoaffective bipolar disorder, as well as a polysubstance dependency. She described the symptoms of these disorders and opined Alsafar’s case was severe. Bosch also described Alsafar’s history of hospitalizations. His first hospitalization occurred when he was 16 or 17 years old and, at that time, he also began receiving Social Security due to his mental health disability.
Bosch did not believe Alsafar’s mental disorder was in remission. In support of this conclusion, she referred to some of Alsafar’s testimony in court. She also described a statement he made during an interview with her, in which he stated he was a dog and God wanted him to be a dog. She opined the records indicated he was not in remission because he was experiencing paranoia, delusions, and hallucinations. He believed others intended to harm him and that he could speak with God. Alsafar told her that he did not believe he had a mental illness, and they discussed his drug usage. She explained drug usage can “exacerbate the [mental illness] symptoms” and cause the person to “become highly unpredictable.”
Bosch testified Alsafar’s mental disorder was a lifelong disease that would require treatment throughout his life. She stated Alsafar could receive psychiatric help and assistance from social workers, nurses and psychologists at
II
A. Is the Appeal Moot?
This same issue was discussed in the Dunley case, as follows: “A case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief. [Citation.] By the nature of MDO proceedings, in which a new commitment order must be sought every year, issues arising in such proceedings can most often not be decided on appeal quickly enough to provide any relief to the person committed. That is the case here. . . . A reversal of appellant’s current commitment order would have no effect on the pending petition. However, it is appropriate to address the issues raised in this appeal because they are important legal issues that are likely to reoccur ‘ “while evading appellate review.” ’ [Citation.] Accordingly, we have chosen to address these issues, but we will dismiss the appeal as moot. [Citation.]” (Dunley, supra, 247 Cal.App.4th at p. 1445.)
Alsafar’s counsel argues the appeal in this case is not moot because the Dunley case is factually distinguishable. We acknowledge the cases differ, but the distinction does not make a difference. In the Dunley case, like in the case before us, the recommitment order expired while the appeal was pending. (Dunley, supra, 247 Cal.App.4th at p. 1445.) The case differs from ours in that the new petition to recommit Dunley was denied “based on the trial court’s finding that [he] no longer [met] the criteria for commitment as an MDO.” (Ibid.) Whereas, Alsafar’s recommitment petition was granted.
Alsafar argues the Dunley court did not hold a subsequent recommitment rendered the appeal moot, but rather it was because “an expired and not renewed commitment could have no practical effect on him.” He maintains that when an MDO is not properly committed within a given year, the MDO must be
If this appeal had been heard and decided before the one-year timeline, we could have given Alsafar the effective remedy of a rehearing on the petition. Unfortunately, the time has passed and a rehearing would have no effect because Alsafar has been recommitted pursuant to a properly filed petition and after a hearing in which he received the relief he seeks from us.
We have “inherent power to retain the matter, even if it is technically moot. [Citations.]” (People v. Williams (1999) 77 Cal.App.4th 436, 441, fn. 2 [92 Cal.Rptr.2d 1] (Williams) [although appeal from expired MDO commitment order, court reached procedural issues that were “important and of continuing interest“].) ” ‘As a general rule, an appellate court only decides actual controversies. It is not the function of the appellate court to render opinions ” ‘upon moot questions or abstract propositions, or . . . declare principles or rules of law which cannot affect the matter in issue in the case before it.’ ” ’ [Citation.] ‘[A] case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief.’ [Citation.] . . . [¶] But appellant raises important procedural issues concerning
We conclude Alsafar has raised an important procedural issue that is not only of “important and of continuing interest” but is also one capable of repetition, but evading review. (Williams, supra, 77 Cal.App.4th at p. 441, fn. 2; see Gregerson, supra, 202 Cal.App.4th at p. 321.) We reject the Attorney General’s argument to ignore the issue because recent cases like Curlee and
B. Was There an Equal Protection Violation?
Alsafar maintains he was denied equal protection when the trial court required him to testify, over his objection, for the district attorney at his MDO recommitment hearing. The trial court agreed with the district attorney’s argument that case authority holding an NGI could not be compelled to testify (Hudec, supra, 60 Cal.4th 815) did not apply to an MDO. The trial court did not have the benefit of two published opinions holding SVP’s were entitled to the same procedural protections as MDO’s. (Landau, supra, 246 Cal.App.4th at p. 864; Curlee, supra, 237 Cal.App.4th at p. 721.) More importantly, the court did not have the advantage of the decision in Dunley, supra, 247 Cal.App.4th at pp. 1447-1450, holding MDO’s are similarly situated to NGI’s and SVP’s with respect to the testimonial privilege and for purposes of equal protection. We agree with Dunley’s well-reasoned decision, and note the Attorney General does not point to any reason to reconsider the issue.
The Attorney General also asserts that any error in compelling Alsafar’s testimony was harmless under Watson, supra, 46 Cal.2d 818. She asserts Watson applies because the right not to be compelled to testify in an MDO hearing arises solely from state law. Applying this standard, the Attorney General argues that even if there was an equal protection violation, the error was harmless because Alsafar’s testimony was cumulative to other evidence introduced through other witnesses.
We need not address the issue of which standard of review applies because we have dismissed the appeal as moot. However, we direct the Attorney General’s attention to the large body of case law that agrees to the following:
” ‘[B]y calling the person in its case-in-chief, the state is essentially saying that his or her testimony is necessary for the state to prove its case. We have no doubt that a committee so compelled to testify is prejudiced under these circumstances. The California Supreme Court noted in Cramer v. Tyars (1979) 23 Cal.3d 131 [151 Cal.Rptr. 653, 588 P.2d 793] that permitting the jury to observe the person sought to be committed and to hear him speak and respond provided “the most reliable proof and probative indicator of the person’s present mental condition.” [Citation.] As such, we cannot conclude that compelling [the committee] to testify, even if his testimony was in some regards cumulative to that of other witnesses, was harmless error.’ [Citation.]” (Curlee, supra, 237 Cal.App.4th at p. 722.)” (Landau, supra, 246 Cal.App.4th at p. 865; accord, People v. Haynie (2004) 116 Cal.App.4th 1224, 1230 [11 Cal.Rptr.3d 163] [“The right to not be compelled to testify against oneself is clearly and relevantly implicated when a person is called by the state to testify in a proceeding to recommit him or her even if what is said on the witness stand is not per se incriminating“].)
III
The appeal is dismissed as moot.
Fybel, J., and Ikola, J., concurred.
Appellant’s petition for review by the Supreme Court was denied May 17, 2017, S240961.