Filed 3/21/18 Central Valley Regional Center v. M.H. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

CENTRAL VALLEY REGIONAL CENTER,

Plaintiff and Respondent,

v.

M.H.,

Defendant and Appellant.

F074473

(Super. Ct. No. 11CEPR01068 )


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Gary D. Hoff, Judge.
Julia Freis, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Libby A. Hellwig, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
Appellant, M.H., is considered a developmentally disabled individual for purposes of Welfare and Institutions Code section 6500 et seq. (unless otherwise specified, all further statutory references are to this code). Pursuant to section 6500, subdivision (b)(1), “[a] person with a developmental disability may be committed to the State Department of Developmental Services for residential placement other than in a state developmental center or state-operated community facility, as provided in subdivision (a) of Section 6509, if he or she is found to be a danger to himself, herself, or others.” M.H. appeals from an order of commitment under section 6500, which was issued following a jury determination that he posed a danger to himself and/or others. However, the order was valid for only one year and expired on August 5, 2017. Accordingly, and for the reasons discussed herein, we dismiss the appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
In November 1997, M.H., then age 20, was charged with four counts of committing lewd or lascivious acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)) and one count of sexual battery (id., § 243.4, subd. (a)). The alleged victims were his three-year-old and seven-year-old half siblings. M.H was later found incompetent to stand trial and ordered to be placed in a “locked treatment facility,” where he remained from approximately 1998 through 2003. He has since resided in less restrictive treatment facilities located throughout the Central Valley of California, most recently in Fresno (i.e., from 2010 to the present).
In January 2015, the Fresno County Superior Court issued an order pursuant to section 6500 committing M.H. to the Department of Developmental Services (DDS) for residential placement. The order called for placement at the same facility where he had been residing, and it specified that the “commitment shall expire on September 16, 2015.” On September 11, 2015, Central Valley Regional Center (CVRC), which is a DDS designee, filed a petition for a new section 6500 commitment order. Three days later, the trial court ordered, pursuant to section 6506, that M.H. remain in DDS custody at his current facility pending adjudication of the petition. M.H. exercised his right to a jury trial, which was originally scheduled for December 8, 2015. There were several continuances, and trial did not commence until August 2016.
Psychologist Koa Yang, Ph.D., testified as an expert witness on behalf of CVRC. Among other testimony, Dr. Yang opined that M.H. had “substantial handicaps in the areas of learning, the areas of communication skills, self care, self direction that involves behaviors, economic self sufficiency as well as independent living skills.” The expert also testified that M.H. had been diagnosed with impulse control disorder and pedophilia. Two additional witnesses for CVRC testified to having heard M.H. make numerous statements regarding his sexual attraction to children. In opposing the petition, M.H. relied on the testimony of two family members. In particular, his father opined that, despite him having made statements to the contrary, M.H. is not actually a pedophile.
The parties stipulated to the fact that M.H. is developmentally disabled. The jury ultimately found in favor of CVRC, concluding that M.H. was a danger to himself and/or others, and that his developmental disability was a “substantial factor in his dangerousness.” On or about August 5, 2016, the trial court issued an order committing M.H. to the DDS for continued placement at the facility where he had been residing. M.H. filed a notice of appeal on October 4, 2016. By its terms, the commitment order expired on August 5, 2017.
DISCUSSION
Summary of Claims and Issues
Admission of Hearsay
In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), the California Supreme Court held that an expert witness cannot testify to case-specific facts asserted in hearsay statements unless such facts are within the expert’s personal knowledge or independently supported by admissible evidence. (Id. at pp. 684-686.) Relying on Sanchez, M.H. contends that CVRC’s expert, Dr. Yang, related inadmissible hearsay during his trial testimony. However, M.H. acknowledges that Sanchez was published prior to the trial proceedings in this case, and that his attorney did not make the necessary objections to preserve the issue for appellate review. The claim is therefore presented as one of ineffective assistance of counsel. CVRC argues that the claim fails for lack of prejudice.
Alleged Instructional Error
Under section 6500, the petitioning party must show that the respondent has a developmental disability; is a danger to himself and/or others; and that the developmental disability is “a substantial factor in causing him serious difficulty controlling his dangerous behavior.” (In re O.P. (2012) 207 Cal.App.4th 924, 928.) In this context, “danger” refers to the potential for infliction of serious physical injury upon oneself or another person. (People v. Hartshorn (2012) 202 Cal.App.4th 1145, 1152-1154.) Case law recognizes a sua sponte duty to instruct on both the concept of dangerousness (id., at p. 1154) and the required connection between a person’s developmental disability and their “serious difficulty in controlling … dangerous behavior” (People v. Sweeney (2009) 175 Cal.App.4th 210, 224-225). M.H. claims the trial court erred by failing to instruct on these elements. CVRC argues the issue was forfeited by M.H.’s failure to raise it below. CVRC also disputes the claim on the merits and contends that the alleged error was harmless.
Due Process Claim
A section 6500 petition must be scheduled for hearing “no more than 60 days after the filing of the petition[,]” and the trial court “may grant a continuance only upon a showing of good cause.” (§ 6503.) In this case, an initial hearing on the petition occurred on October 21, 2015, which was within the 60-day deadline. By mutual request and agreement of the parties, the matter was set for trial on December 8, 2015. On December 2, 2015, at a trial readiness hearing, counsel for M.H. requested and received a continuance, which pushed the trial date out to January 26, 2016. Trial was subsequently continued multiple times for lack of an available courtroom, and finally commenced on August 2, 2016.
M.H. impliedly argues that lack of an available courtroom does not constitute good cause for a continuance under section 6503. He further contends that the extension of his institutional commitment pending trial, which had been ordered pursuant to section 6506, violated his right to due process, and that the appropriate remedy “is to apply the days [he] spent detained pending trial to the term of commitment.” CVRC disputes this claim.
In the briefing, both parties cite to Cramer v. Gillermina R. (1981) 125 Cal.App.3d 380 (Cramer). The Cramer opinion instructs that a section 6500 petitioner “must make every effort to file the petition sufficiently far in advance that no [interim] hold order is necessary ….” (Id. at p. 393.) In that case, an eight-month delay in the adjudication of a petition was characterized as “shocking” and “in clear contravention of the Legislature’s intent that [developmentally disabled] persons shall be reviewed no more than fourteen months after their last judicial review.” (Ibid; see § 6500, subd. (b)(1)(A) [“Any order of commitment made pursuant to this paragraph shall expire automatically [in] one year …”], § 6503 [“The time for the hearing shall be set no more than 60 days after the filing of the petition.”].) However, the appellate court rejected the argument that developmentally disabled individuals are entitled to credit for time spent in custody pursuant to section 6506 while awaiting trial and recommitment. (Cramer at pp. 393-394.)
Mootness
CVRC submits that the appeal should be dismissed as moot. As noted, the order in question expired more than seven months ago, on August 5, 2017. In further support of its mootness argument, CVRC directs our attention to court records that show M.H. was recommitted to DDS custody on September 13, 2017 and has been ordered to remain at his current facility until September 13, 2018. It is alleged that M.H. “voluntarily decided to submit” to CVRC’s most recent section 6500 petition, and he does not deny that contention in his reply brief. M.H. concedes the issue of mootness, but asks that we exercise discretion to address his legal arguments on the merits.
Dismissal for Mootness
As a general rule, appellate review is limited to actual controversies; a case that involves “ ‘only abstract or academic questions of law cannot be maintained.’ ” (People v. DeLong (2002) 101 Cal.App.4th 482, 486.) “ ‘ “[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 in such a case would be without practical effect, and the appeal will therefore be dismissed.” ’ ” (Ibid.) In other words, “[a]n appeal should be dismissed as moot when the occurrence of events renders it impossible for the appellate court to grant appellant any effective relief.” (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479 (Cucamongans).) Here, since the order appealed from has expired, resolving the issues presented would not confer any effective relief to the parties. Therefore, the appeal is moot.
There are three exceptions to the rule against adjudicating moot claims. A reviewing court may decide an appeal on the merits: “(1) when the case presents an issue of broad public interest that is likely to recur [citation]; (2) when there may be a recurrence of the controversy between the parties [citation]; and (3) when a material question remains for the court’s determination.” (Cucamongans, supra, 82 Cal.App.4th at pp 479-480.) We are aware of our discretionary authority, and are not compelled to exercise it under the circumstances of this case.
DISPOSITION
The appeal is dismissed as moot.