Filed 4/17/18 P. v. Kolb 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

VERNON LEROY KOLB, JR.,

Defendant and Appellant.

F071451

(Super. Ct. No. FP004085A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, 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-
 
Appellant Vernon Leroy Kolb, Jr., appeals from an order for extended commitment pursuant to Penal Code section 2972, subdivision (c). Appellant contends his hearing was fundamentally unfair due to the improper admission of substantial amounts of case-specific hearsay through an expert witness. For the reasons set forth below, we dismiss the appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
On October 23, 2014, the People filed a notice of hearing under Penal Code section 2970 to extend appellant’s civil commitment. The subsequent petition alleged appellant had previously been committed to the Department of Corrections after pleading guilty to the crime of lewd and lascivious acts with a child in 2003. Appellant was certified as a mentally disordered offender in 2007 and agreed to multiple one-year extensions of his commitment, including one on May 9, 2014, that potentially extended appellant’s commitment until April 16, 2015.
The court held a jury trial on the petition from March 10 through March 13, 2015. Due to a scheduling conflict, appellant agreed to present his defense first and relied upon both an expert and testimony from his brother. When the People presented their case, they relied exclusively on the testimony of their expert witness, Dr. Mathews. Dr. Mathews relied upon information gained through interviewing appellant, consulting with the psychologists working with appellant, and reviewing documents to conclude appellant should remain committed. The jury ultimately agreed with the People and found appellant was a mentally disordered offender. The court subsequently extended his commitment until April 16, 2016.
This appeal timely followed, with the notice of appeal filed on April 20, 2015. In January 2016, appellant’s counsel filed a Wende brief, asking this court to review the record to determine whether there were any arguable issues on appeal. (See People v. Wende (1979) 25 Cal.3d 436.) However, in June 2016, our Supreme Court issued an opinion in People v. Sanchez (2016) 63 Cal.4th 665, 684, clarifying that “[i]f an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay.” Appellant subsequently filed a revised opening brief alleging Sanchez error in his commitment hearing.
DISCUSSION
The People raise several points in opposition to appellant’s allegation of Sanchez error, including that this court should deem the present appeal moot. We agree with the People on this point and dismiss the appeal as moot.
Standard of Review and Applicable Law
“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.’ ” (People v. Rish (2008) 163 Cal.App.4th 1370, 1380.) Although an appeal may be moot, we retain discretion to decide it if there is an important public interest involved that will continue to recur and evade review and may resolve a technically moot dispute if such factors are present. (People v. Gregerson (2011) 202 Cal.App.4th 306, 321.)
It is Not Appropriate to Resolve the Sanchez Dispute in This Case
Appellant does not contest that his case is technically moot, but argues we should exercise our discretion to resolve whether Sanchez error occurred in this case and when such error is reversible in the context of civil commitment hearings. This case, however, does not rise to the level where we would consider exercising our discretion. Critically, in this case appellant’s commitment order expired on its own terms in April 2016. The Supreme Court’s opinion in Sanchez did not issue until June 2016. Thus, the law that appellant seeks to apply in this instance was not yet espoused at the point this case became technically moot and only after appellant’s case became moot did he raise this dispute. As any further commitment at the time appellant could first raise this dispute would arise from separate proceedings, we have a reasonable opportunity to consider Sanchez in those proceedings if appellant remains affected and can consider taking up the issue in a later case should trial courts improperly apply Sanchez in the future. We therefore conclude it is inappropriate to exercise our discretion to review allegations of Sanchez error in this case.
DISPOSITION
The appeal is dismissed as moot.