1
Filed 5/8/17 P. v. W.H. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
W.H.,
Defendant and Appellant.
E064427
(Super.Ct.No. FELJS1404910)
OPINION
APPEAL from the Superior Court of San Bernardino County. Lorenzo R.
Balderrama, Judge. Dismissed.
REQUEST FOR JUDICIAL NOTICE. Granted.
Michelle D. Peña, 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, Senior Assistant Attorney General, and Eric A. Swenson,
Lynne G. McGinnis, and Joy Utomi, Deputy Attorneys General, for Plaintiff and
Respondent.
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The People filed a petition to recommit defendant W.H.1 as a mentally disordered
offender (MDO). At the trial on the petition, the People called defendant to testify in
their case-in-chief; the trial court had denied defense counsel’s motion in limine objecting
to this procedure. A jury then found that defendant was still an MDO.
Defendant appeals. We will hold that the trial court erred because, under multiple
precedents, including one from this court, a prospective MDO has a right to refuse to
testify at trial, unless the People can show a compelling interest in denying this right to
all prospective MDOs. We need not decide whether the error was prejudicial because the
appeal is moot. We reach the issue nevertheless for purposes of any subsequent
proceeding to recommit defendant.
I
MOOTNESS
The People contend that the appeal is moot. Because this issue goes to our
jurisdiction, we consider it at the threshold.
An MDO recommitment lasts for one year. (Pen. Code, § 2972, subds. (c), (e).)
Here, defendant was recommitted for one year, i.e., until June 29, 2016.
Defendant has requested judicial notice of a minute order, which shows that on
February 17, 2017, he withdrew his opposition to a then-pending re-recommitment
petition; accordingly, the trial court re-recommitted him from June 29, 2017 through June

1 We accord defendant protective nondisclosure under California Rules of
Court, rule 8.90(b)(3) [patients in mental health proceedings].
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29, 2018.2
The People did not oppose the request. Accordingly, the request is hereby
granted.
“‘[A] case becomes moot when a court ruling can have no practical effect or
cannot provide the parties with effective relief.’ [Citation.]” (People v. Gonzalez (2017)
7 Cal.App.5th 370, 380.) 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].)
Even assuming the trial court committed prejudicial error, we cannot undo
defendant’s 2015-2016 recommitment. The only remedy available is a reversal and a
remand for a retrial of the recommitment hearing; and the only point of that would be to
determine whether defendant can be re-recommitted. If we knew that defendant had
already been re-recommitted after a full trial, in which he was not compelled to testify
against himself, then it would be apparent that he had already received the maximum
relief to which he could possibly be entitled.
We do not know this. However, we do know that he consented to be rerecommitted
without any trial at all. At oral argument, defendant’s counsel argued that

2 This suggests that he had already been re-recommitted from June 29, 2016
through June 29, 2017, although we have no way of knowing whether he had a full trial
or merely declined to oppose that re-recommitment.
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he may have been relying on the fact that he had been compelled to testify against
himself in a previous trial. However, he had the assistance of appointed counsel, and he
knew that this appeal — in which he was claiming that he could not be compelled to
testify against himself — had not yet been decided. Thus, he knew that he could object
to being compelled to testify against himself. Instead, he forfeited this objection.
Hence, defendant has still received all of the relief we could give him — an
opportunity to have a full trial, in which he has the opportunity to assert a right not to
testify. Presumably if we were to place him back in the same position, he would choose,
once again, to forgo a trial. Thus, reversing and remanding would be an idle act.
Defendant argues that “a reversal would have a practical effect” because “all
subsequent commitment hearings were improper as they were predicated on the
erroneous commitment order. If the appealed hearing had a different outcome it would
have prevented the subsequent recommitments. Therefore, [defendant] would not remain
in commitment.” The problem with this reasoning is that he has already had a do-over,
and it had the same outcome.
Similarly, he argues: “The appealed commitment order, . . . which made all
subsequent commitment hearings possible, . . . was premised on a denial of equal
protection. [Citation.] [Defendant]’s forced testimony was used as the prosecution’s
case-in-chief. [Citation.] . . . [¶] This faulty, unconstitutional commitment cannot justly
serve as the foundation for the subsequent commitments.” Since then, however, he has
received a fault-free, constitutional commitment.
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Defendant relies on People v. J.S. (2014) 229 Cal.App.4th 163, a decision of this
court. There, during the initial commitment, the defendant filed a petition for judicial
review. The petition had not yet been tried when the one-year initial commitment
expired; the trial court therefore dismissed it as moot. (Id. at pp. 167-169.)
We reversed, holding that the petition was not moot. We began by noting that:
“Three of the six criteria to establish MDO status . . . are dynamic, in the sense of being
‘capable of change over time, and must be established at each annual review of the
commitment.’ [Citation.] The other three . . . ‘are considered “static” or “foundational”
factors in that they “concern past events that once established, are incapable of change.”’
[Citation.] ‘The practical effect of this distinction is that the three criteria concerning
past events need only be proven once, while the BPT [(Board of Prison Terms)] must find
that the parolee meets the other three criteria at the time of the annual hearing in order to
continue treatment for an additional year.’ [Citation.]” (People v. J.S., supra, 229
Ca1.App.4th at pp. 169-170.)
We therefore reasoned: “Even after the expiration of the initial commitment, . . .
the initial determination of whether an offender qualifies as an MDO continues to have
practical effects. In some circumstances, an offender’s involuntary treatment may be
continued beyond the initial one-year term, either as a continued condition of parole, or
after parole is terminated. [Citation.] Obviously, if an offender’s initial commitment is
improper, any extended commitment would also be improper. Moreover, to continue an
offender’s commitment, the People need only make a showing regarding the three section
2966 criteria that are capable of change over time, while it is assumed that the initial
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showing with respect to the static factors remains valid. [Citations.] Thus, at least where
the People seek to continue an offender’s involuntary treatment beyond the initial oneyear
term, an offender’s challenge to the validity of the initial determination that he or
she qualifies as an MDO could have significant practical effects, and cannot be
considered moot.” (People v. J.S., supra, 229 Ca1.App.4th at pp. 170-171.)
J.S. does not apply here, because this appeal relates to a recommitment, not an
initial commitment. Thus, the issues at the hearing he is seeking would be the same as at
the hearing he has already been offered. The practical effects of the claimed error have
been eliminated.
Nevertheless, when an appellant raises an issue that is “likely to recur while
evading appellate review [citations],” we have “discretion to decide the issue for the
guidance of future proceedings before dismissing the case as moot.” (People v. Cheek
(2001) 25 Cal.4th 894, 897-898.) Here, as defendant argues, the identical issue is likely
to recur in any future proceeding to recommit him. We therefore reach defendant’s
contention, but only to the extent necessary to provide guidance to the trial court in any
future proceedings.
II
THE RIGHT NOT TO TESTIFY IN AN MDO PROCEEDING
Defendant contends that, because similarly situated involuntary committees have a
statutory right not to testify in their commitment proceedings, the same right must be
extended to him as a matter of equal protection. We agree.
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“‘“The first prerequisite to a meritorious claim under the equal protection clause is
a showing that the state has adopted a classification that affects two or more similarly
situated groups in an unequal manner.” [Citations.] This initial inquiry is not whether
persons are similarly situated for all purposes, but “whether they are similarly situated for
purposes of the law challenged.”’ [Citation.]” (People v. Morales (2016) 63 Cal.4th 399,
408.)
When “personal liberty is at stake, . . . the applicable standard for measuring the
validity of [a] statutory scheme . . . requires application of the strict scrutiny standard of
equal protection analysis. Accordingly, the state must establish both that it has a
‘compelling interest’ which justifies the challenged procedure and that the distinctions
drawn by the procedure are necessary to further that interest. [Citation.]” (In re Moye
(1978) 22 Cal.3d 457, 465.)
“Because of the fundamental interests at stake, equal protection principles are
often invoked in civil commitment cases to ensure that the statutory scheme applicable to
a particular class of persons has not treated them unfairly in comparison with other
groups with similar characteristics. [Citation.]” (People v. Barrett (2012) 54 Cal.4th
1081, 1107.)
California provides for the involuntary civil commitment of several classes of
offenders, either after or in lieu of a term of criminal incarceration, based on the risk of
danger that they present to others or to themselves. These include:
(1) MDOs. (Pen. Code, § 2960 et seq.)
(2) Sexually violent predators (SVPs). (Welf. & Inst. Code, § 6600 et seq.)
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(3) Persons found not guilty by reason of insanity (NGIs). (Pen. Code, § 1026.5
et seq.)
(4) Dangerous minors (DMs). (Welf. & Inst. Code, § 1800 et seq.)
(5) Mentally retarded offenders (MROs). (Welf. & Inst. Code, § 6500 et seq.)
“It is well settled that rights available in criminal trials do not necessarily apply in
civil commitment proceedings. [Citations.]” (Moore v. Superior Court (2010) 50 Cal.4th
802, 818.) However, a prospective committee may have some of the same rights as a
matter of due process. (E.g., People v. Hill (2013) 219 Cal.App.4th 646, 652
[prospective SVP has right to effective assistance of counsel as a matter of due process];
People v. Wilkinson (2010) 185 Cal.App.4th 543, 547-550 [prospective MRO has right to
be present at trial as a matter of due process].)
In addition, each commitment scheme grants certain specified procedural rights,
modeled on constitutional rights, as a matter of statute; however, the particular rights
granted vary from scheme to scheme. (Pen. Code, §§ 1026.5, subd. (b)(7) [NGIs], 2972,
subd. (a) [MDOs]; Welf. & Inst. Code, §§ 1801.5 [DMs], 6500, subd. (b)(5) [MROs],
6603, subd. (a) [SVPs].)
One of the broadest of these grants of rights is in the NGI statutes, which provide
that the prospective committee “shall be entitled to the rights guaranteed under the
federal and State Constitutions for criminal proceedings.” (Pen. Code, §§ 1026.5, subd.
(b)(7).) In 2015, the California Supreme Court held that this includes the right not to
testify at trial. (Hudec v. Superior Court (2015) 60 Cal.4th 815, 826-832.) By contrast,
the MDO statutes merely provide that the prospective committee has the “right to be
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represented by an attorney and . . . the right to a jury trial . . . .” (Pen. Code, § 2972,
subd. (a).)
In the wake of Hudec, People v. Curlee (2015) 237 Cal.App.4th 709 remanded for
further proceedings to determine whether an SVP has a right, as a matter of equal
protection, not to testify in a recommitment proceeding. First, the court held that SVPs
are similarly situated to NGIs for purposes of the right not to testify. (Id. at pp. 720-721.)
It also noted that the People had not shown any justification for the disparate treatment.
(Id. at pp. 721-722.) It then stated: “[W]e do not conclude the People cannot meet their
burden to show the testimony of an NGI is less necessary than that of an SVP. We
merely conclude that they have not yet done so. In our view, the proper remedy is to
remand the matter to the trial court to conduct an evidentiary hearing to allow the People
to make an appropriate showing.” (Id. at p. 722.)
In People v. Landau (2016) 246 Cal.App.4th 850, the appellate court reversed an
SVP recommitment on other grounds and remanded for further proceedings. (Id. at
pp. 865-882.) However, it also held that SVPs and NGIs are similarly situated for
purposes of the right not to testify. (Id. at p. 864.) It directed the trial court on remand
that: “Should the district attorney again seek to call appellant to the witness stand in this
matter, the superior court is to conduct a hearing to determine whether the district
attorney can, subject to the applicable equal protection standard, establish sufficient
justification for treating SVPs and NGIs differently for purposes of providing one a right
to refuse to testify at trial while denying the same right to the other.” (Id. at p. 865.)
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Similarly, in People v. Dunley (2016) 247 Cal.App.4th 1438, we held that MDOs
and NGIs are similarly situated for purposes of the right not to testify (id. at pp. 1447-
1450) and that strict scrutiny applied (id. at pp. 1450-1453). We did not decide whether
the People had justified (or should be given an opportunity to justify) the disparate
treatment, because the defendant had been found not to be an MDO any longer, so the
appeal was moot. (Id. at pp. 1443, 1445.)
People v. Field (2016) 1 Cal.App.5th 174 held that SVPs are similarly situated to
NGIs for purposes of the right not to testify (id. at pp. 192-194) and that strict scrutiny
applied (id. at pp. 194-196). As in Curlee, the court remanded with directions “to
conduct an evidentiary hearing at which the People will have the opportunity to show that
the differential statutory treatment of SVP’s and NGI’s is justified.” (Id. at p. 197.)
Under Curlee, Landau, Field, and especially our own opinion in Dunley, we hold
that MDOs and NGIs are similarly situated for purposes of the right not to testify.
Although the People do not concede the point, they also do not argue otherwise. Instead,
they argue that the equal protection violation, if any, was harmless. Because the appeal is
moot, however, there is no point in deciding whether the error is reversible. There is
likewise no point to remanding to give the People the opportunity to justify the disparate
treatment of MDOs and NGIs.
In any future proceeding to recommit defendant, however, it will be the law of the
case that MDOs and NGIs are similarly situated for purposes of the right not to testify. It
will also be the law of the case that defendant cannot be required to testify unless and
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until the People show that the disparate treatment of MDOs and NGIs with respect to the
right not to testify is justified by a compelling interest.
III
DISPOSITION
The appeal is dismissed as moot. (See People v. Dunley, supra, 247 Cal.App.4th
at p. 1454.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
CODRINGTON
J.
SLOUGH
J.