Filed 3/12/18 P. v. David M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID M.,

Defendant and Appellant.

F075014

(Super. Ct. No. FP004021A)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Kern County. Colette M. Humphrey, Judge.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant David M. was recommitted to Coalinga State Hospital (CSH) for an additional year of treatment as a mentally disordered offender (MDO). On appeal, he contends there was insufficient evidence he currently suffered from a severe mental disorder and was currently dangerous. We conclude the evidence was sufficient and affirm the order extending defendant’s commitment.
BACKGROUND
Defendant had been hospitalized as an MDO patient at CSH since 2009. His qualifying offense was annoying or molesting a child under 18 years of age (Pen. Code, § 647.6) in 1999. He had approached young boys, asked them to touch him, and threatened to pursue them when they left.
On October 18, 2016, the Kern County District Attorney filed a petition seeking to extend defendant’s involuntary MDO commitment for another year pursuant to section 2970.
On November 15, 2016, defendant waived his right to a jury trial on the extension matter and agreed to submit on the report prepared by CSH psychologist, Dr. Robert Wagner, Ph.D., on February 24, 2016.
In the report, Dr. Wagner noted he would provide an opinion as to whether defendant met the criteria for involuntary treatment pursuant to section 2972 for the time period of October 15, 2016, to October 15, 2017, and his opinion would be based on the time period of October 15, 2015, to the present date of February 24, 2016. His sources of information included his interview with defendant in February 2016.
According to the report, defendant had been diagnosed with “Bipolar Disorder, Hypomanic, Unspecified, in Partial Remission.” He suffered from auditory hallucinations, delusional ideation, pressured speech, tangential and circumstantial thinking, irritability, sleep disturbance, excessive masturbation, and odd affect. These symptoms “substantially impaired his rational thinking, perception of reality, emotional process, judgment, and behavior.” He had also been diagnosed with “Pedophilic Disorder, Sexually Attracted to Both, Non Exclusive Type.” He suffered from “persistent sexually arousing fantasies, behaviors and urges that involve some kind of sexual activity with a prepubescent child … for six months or more.” He had admitted being sexually attracted to children.
During defendant’s February 2016 interview, his speech was purposeful and goal oriented. His mood was stable. He disagreed with the idea that he was still a danger to children. He said he was wheelchair bound and could barely stand up. He became somewhat upset when talking about his daughter, whom he was not allowed to see. He believed she was seven or eight years old, but the length of his confinement meant any child of his was at least 16 years old. He had told another interviewer he had identical twins.
In August 2015, a peer reported that defendant was watching a child pornography DVD. After a search, staff confiscated the DVD. Defendant cursed at the staff and claimed the DVD had been left on his bed and was not his.
Less than a month later, defendant’s peer reported that defendant had attempted to pull down the peer’s pants and perform oral sex on him against his will, and that defendant also had grabbed him many times during the night. Defendant denied the report.
In October 2015, defendant was violent toward a peer when he kicked a trashcan at him.
A December 2015 report noted that magazine clippings of clothed underage children were found in defendant’s room. Defendant denied they were his and blamed someone else for putting them there. He resisted and spat on staff. They placed him in full bed restraints and medicated him.
A January 2016 report noted that defendant attended substance abuse, karaoke, and beading groups, but declined to attend sex offender treatment group, computer training lab, and sex offender computer lab.
In February 2016, defendant’s psychologist noted that defendant’s autoerotic asphyxiation practice remained a danger to defendant.
Dr. Wagner summarized that during the period of review, defendant had not damaged state property, but he had made threats, committed acts of physical aggression, and failed until recently to follow his treatment plan. Dr. Wagner opined that defendant’s pedophilic disorder was not in remission. Defendant had not taken responsibility for his acts, had not demonstrated adequate relapse prevention skills for coping with high-risk situations in the community, and was unable to persist in achieving treatment goals even in a highly structured environment. He lacked insight into his mental illness, denied his condition, and may have been suffering from early onset dementia. He had a criminal and parole violation history and was a section 290 registrant. Dr. Wagner opined that defendant continued to present a substantial danger of physical harm to others as a result of his severe mental disorder.
On November 15, 2016, the trial court granted the petition and extended defendant’s involuntary commitment for one year until October 15, 2017.
On January 13, 2017, defendant filed a notice of appeal.
DISCUSSION
“[A] case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief.” (Lincoln Place Tenants Assoc. v. City of Los Angeles (2007) 155 Cal.App.4th 425, 454.) Thus, ordinarily, when a recommitment expires before the defendant’s appeal from the recommitment order can be heard, the appeal is moot. (People v. Merfield (2007) 147 Cal.App.4th 1071, 1074-1075; In re Lemanuel C. (2007) 41 Cal.4th 33, 38, fn. 4 [juvenile extended detention proceeding under Welf. & Inst. Code, § 1800]; People v. Hurtado (2002) 28 Cal.4th 1179, 1186 [sexually violent predator proceeding].) As noted, defendant’s commitment order expired on October 15, 2017.
We take judicial notice that a new order for commitment was made on December 21, 2017, committing defendant to another year of treatment to expire on October 15, 2018. (See Evid. Code, §§ 452, subd. (d), 459; §§ 2970, 2972.) Defendant filed a notice of appeal from that commitment order on January 22, 2018. Accordingly, we do not treat this appeal as moot since a reversal of the previous order of commitment based on insufficiency of the evidence would mean the court lacked jurisdiction to extend defendant’s commitment as an MDO going forward.
“ ‘The Mentally Disordered Offender Act (MDO Act), enacted in 1985, requires that offenders who have been convicted of violent crimes related to their mental disorders, and who continue to pose a danger to society, receive mental health treatment … until their mental disorder can be kept in remission.’ ” (Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1061 (Lopez), disapproved on another point in People v. Harrison (2013) 57 Cal.4th 1211.) “Commitment as an MDO is not indefinite; instead, ‘[a]n MDO is committed for … one-year period[s] and thereafter has the right to be released unless the People prove beyond a reasonable doubt that he or she should be recommitted for another year.’ ” (Lopez, at p. 1063.)
To obtain an extension of one year, the People must prove that (1) the defendant continues to have a severe mental disorder; (2) the defendant’s severe mental disorder is not in remission or cannot be kept in remission without treatment; and (3) because of his severe mental disorder, the defendant continues to represent a substantial danger of physical harm to others. (§ 2972, subd. (c); Lopez, supra, 50 Cal.4th at p. 1063; People v. Beeson (2002) 99 Cal.App.4th 1393, 1398-1399.) “A defendant’s condition a year earlier is relevant but not dispositive of these questions.” (People v. Cobb (2010) 48 Cal.4th 243, 252.) At a recommitment hearing, the issue is whether the defendant’s “current condition justifie[s] extension of his commitment.” (Ibid.) Furthermore, an involuntary civil commitment requires proof that the defendant’s mental disorder causes serious difficulty in controlling dangerous behavior (In re Howard N. (2005) 35 Cal.4th 117, 122), “in order to distinguish those persons who are subject to civil commitment from those persons more properly dealt with by the criminal law” (id. at p. 132). A mental health professional “may and should take into account the prisoner’s entire history in making an MDO evaluation. This includes prior violent offenses as well as the prisoner’s mental health history.” (People v. Pace (1994) 27 Cal.App.4th 795, 799.)
“In considering the sufficiency of the evidence to support MDO findings, an appellate court must determine whether, on the whole record, a rational trier of fact could have found that defendant is an MDO beyond a reasonable doubt, considering all the evidence in the light which is most favorable to the People, and drawing all inferences the trier could reasonably have made to support the finding. [Citation.] ‘ “ ‘Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the [finding] is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder ….’ ” ’ ” (People v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083.)
In this case, defendant challenges the sufficiency of the evidence on two of the elements—whether he currently suffered from a severe mental disorder and whether he currently represented a substantial danger of physical harm to others. He contends the eight-month-old report by Dr. Wagner could not have supported either finding of current mental disorder or current dangerousness.
Recognizing that he stipulated to submit on this very report, defendant argues he did not waive his challenge because it was the prosecutor’s job to present substantial evidence, and it was not defendant’s fault that the prosecutor failed to do so. Defendant asserts that sufficiency of the evidence cannot be waived.
In submitting on the report, defendant did not agree that the report contained sufficient evidence, but he did agree that the report would form the basis for the trial court’s ruling and that it was not too old or stale for this purpose. Thus, he waived the objection that the report was too old or stale to form the basis of the court’s decision.
We conclude sufficient evidence supported the findings that defendant currently suffered from a severe mental illness and currently posed a substantial danger of physical harm to others. The evidence showed that defendant continued to suffer from pedophilic disorder, seek out images of children, deny any wrongdoing, and behave sexually toward a peer and aggressively toward both peers and staff. He failed to understand or successfully control his behavior even within the highly structured environment of the hospital.
DISPOSITION
The November 15, 2016, order of commitment (to expire on October 15, 2017) is confirmed.