P. v. Horn

Filed 3/27/07 P. v. Horn 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Janis Shank Mclean and Jane N. Kirkland, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

We are asked to exercise our discretion to decide an otherwise moot appeal on its merits. Because we find the issues are not of substantial and continual public interest and will not evade future appellate review, we decline to address the merits of the issues presented. We dismiss the appeal as moot.

FACTUAL AND PROCEDURAL HISTORY

On September 15, 1997, Richard Horn (appellant) was first committed to the California Department of Mental Health as a Sexually Violent Predator (SVP). Thereafter he was recommitted in two-year intervals, most recently for a term ordered on September 15, 2005. On September 30, 2005, appellant filed a petition for conditional, supervised release pursuant to Welfare and Institutions Code section 6608. After a hearing, the court denied the petition for conditional release.

Appellant filed a notice of appeal on April 11, 2006. During the pendency of this appeal, the trial court held another conditional release hearing and it granted the petition. Appellant concedes the matter is now moot. Appellant nevertheless urges us to exercise our discretion and decide two issues: (1) may a court deny a conditional release based on doubts the outpatient treatment program will minimize the risk of reoffense, and (2) what standard of review applies to the denial of a petition for conditional release substantial evidence or abuse of discretion.

DISCUSSION

It is settled that the duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. [Citations.] [Citations.] (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132; In re Sodersten (2007) 146 Cal.App.4th 1164, 1217 [53 Cal.Rptr.3d 572, 609]; see also People v. Dail (1943) 22 Cal.2d 642, 659; People v. St. Maurice (1913) 166 Cal. 201.)

Still, there is a well-established exception that an appellate court may, in appropriate circumstances, exercise [its] discretion to retain and decide an issue that is technically moot when[that] issue is of substantial and continuing public interest. [Citation.] (Chantiles v. Lake Forest II Master Homeowners Assn. (1995) 37 Cal.App.4th 914, 921.) This resolution is particularly appropriate when the issue is presented in the context of a controversy so short-lived as to evade normal appellate review , or when it is likely to affect the future rights of the parties. [Citations.] (Ibid.) Appellant urges us to employ this exception and issue an advisory opinion. We decline to do so for two reasons.

First, appellant has not convinced us these are issues of substantial and continuing public interest. Appellants brief offers no supporting arguments besides indicating that both issues affect almost every section 6608 case. Such a claim underestimates the individual, contextual aspect of the appeal before us. Even accepting appellants claim as true, we do not accept his unsupported inference that frequency of an issue necessarily breeds public interest in that issue. We simply do not believe procedural nuances of SVP conditional release hearings, no matter how common, reach the level of public interest required to justify issuing an advisory opinion.

Second, we do not believe these issues will evade normal appellate review if left unresolved in the current controversy. Appellants own case validates our belief. We would have addressed the merits of appellants claims had not his subsequent release made it impossible for us to grant him any effectual relief. Civil commitments under the SVP Act extend for renewable two-year terms, sufficient time for an appellate court to review denials of conditional release petitions. We will wait for a more appropriate circumstance to address the merits of the issues presented here.

DISPOSITION

The appeal is dismissed as moot.

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^* Before Ardaiz, P.J., Harris, J. and Kane, J.