Filed 12/18/17 P. v. Winans CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES WINANS,
Defendant and Appellant.

A148530, A150108

(Humboldt County
Super. Ct. No. CR1303443)


Defendant Charles Winans was declared mentally incompetent to stand trial (IST) for the second time on assault charges enhanced due to the infliction of great bodily injury. Though he was previously on outpatient treatment the first time he was deemed incompetent, the second time Winans was committed to Porterville Developmental Center (Porterville) under Penal Code sections 1370.1 and 1601 for treatment to restore his competency. The Department of Developmental Services (DDS), which operates Porterville, moved to vacate the order, arguing in part that Winans’s placement there was futile based on a psychologist’s opinion that Winans could not be restored to competency in the foreseeable future. The trial court declined to vacate the commitment. In these consolidated appeals, Winans appeals the trial court’s initial order revoking his outpatient status and seeks to vacate his Porterville placement as well as orders directing his involuntary medication. He also appeals the calculation of his commitment credits.
We conclude Winans’s appeal is moot because he has been subsequently restored to competency and released from Porterville. Therefore, we dismiss Winans’s appeal of the trial court’s order revoking outpatient status and its order committing him to Porterville because no meaningful relief can be effectuated through review of these orders since he is no longer at Porterville. We do, however, exercise our discretion to entertain Winans’s appeal of the trial court’s involuntary medication orders and its calculation of his commitment credits. We reverse the orders for involuntary medication. We redirect calculation of Winans’s commitment credits as may be relevant to further the proceedings in the trial court.
BACKGROUND
In August 2013, Winans was charged with assault by means likely to produce great bodily injury under Penal Code section 254, subdivision (a)(4), and corporal injury to a cohabitant under section 273.5, subdivision (a) with a great bodily injury allegation under section 12022.7, subdivision (a). Winans allegedly beat his girlfriend, causing significant facial injuries, and put a bag over her head which she had to chew off. Winans pled not guilty to both charges and denied the bodily injury allegation.
In October 2013, the trial court found Winans suffered from developmental disabilities. In 1978, when Winans was a teenager, he suffered from a traumatic brain injury in a motorcycle accident. The trial court declared him mentally incompetent and suspended the criminal proceedings. Winans was diagnosed with schizoaffective disorder, post-traumatic stress disorder, polysubstance dependence, and dementia due to his brain injury. The court committed Winans to Porterville for competency restoration.
In November 2013, the trial court granted Winans’s request for an interim order to undergo outpatient treatment at the Hilltop Recovery Center (Hilltop), a non-secure, residential facility in Lake County. At Hilltop, Winans’s treatment was supervised by Dr. James Holden who had evaluated Winans’s ability to attain competency and his placement options. After approximately half-a-year at Hilltop, Dr. Holden certified Winans as competent to stand trial. In July 2014, the court found Winans’s mental competency had been restored and reinstated criminal proceedings against him.
But in February 2015, with charges still pending, Winans suffered a stroke. The stroke partially paralyzed the left side of his body, weakened his left leg, and confined him to a wheelchair. He was also diagnosed with seizure disorder and aphasia.
In September 2015, Winans’s counsel again declared doubt as to his competency. Dr. Otto Vanoni, a clinical psychologist, evaluated him and concluded Winans was again incompetent. In October 2015, based on Dr. Vanoni’s report, the court adjudicated Winans incompetent to stand trial for a second time and suspended criminal proceedings pending restoration of his competency. It ordered the community program director for the Central Valley Conditional Release Program (CONREP) to evaluate Winans for treatment. In its report, dated October 26, 2015, CONREP recommended Winans be committed to the state hospital trial competency program. The report noted that CONREP “would not be an appropriate outpatient treatment placement for [Winans] due to his high risk factors, including the serious nature of his offense, lack of insight, relationship instability, substance use problems, major mental illness, and active symptoms of major mental illness.” At the time, Winans was in an outpatient support program for people with traumatic brain injuries.
Winans opposed his placement in a state hospital. He believed he was not dangerous and that a state hospital would be inhumane because of his developmental disability and medical and psychological needs. The People opposed any outpatient program and insisted the court follow CONREP’s recommendation. In April 2016, the People moved to revoke Winans’s outpatient status. On May 19, 2016, the trial court conducted an evidentiary hearing to allow Winans to demonstrate that an outpatient program would provide him with more appropriate mental health treatment and he could be safely placed there without posing a danger to the health and safety of others. Because no evidence was presented at the hearing regarding the services Winans would receive in a state hospital, the court could not find that outpatient treatment would be more appropriate. In addition, the only evidence of Winans’s possible lack of dangerousness was his limited mobility resulting from his stroke, and the court could not find outpatient placement would not pose a danger to the health and safety of others on such evidence. The trial court declined to “grant an exception to the state hospital,” and on May 31, 2016, ordered his commitment (“May 2016 order”). Winans appealed the May 2016 order in case no A148530.
On June 29, 2016, the Department of State Hospitals (DSH) moved the court to reconsider its orders. DSH stated in its motion that it provides treatment to those incompetent to stand trial as a result of a diagnosed mental disorder under section 1370, but that DDS provides treatment to those who have been found incompetent as a result of a developmental disability under section 1370.1. According to DSH’s motion, it would have been “inappropriate to commit a developmentally disabled person, like . . . Winans, to a DSH facility against the recommendations of those medical professionals who have seen him.” Winans joined the motion. The People did not object. The court granted reconsideration, and on August 23, 2016, issued its written order (“August 2016 order”) committing Winans to Porterville.
That same day, DDS moved to vacate Winans’s commitment to Porterville, on the basis that it was futile. Relying on Dr. Holden’s June 17, 2016 competency evaluation, DDS argued that the clinical evidence showed Winans’s stroke rendered him incapable of being restored to competence. DDS further asserted that even if Winans could be restored to competence, his treatment should be provided in a community facility, not a locked facility like Porterville. Winans joined the motion. The People opposed on the basis that Winans needed to be placed in a secure facility and that Dr. Holden’s pre-treatment assessment on his restoration prospects was premature.
DDS’s motion was heard on September 21, 2016. Dr. Holden was the sole witness. Based on his June 2016 evaluation, Dr. Holden concluded Winans could not be restored to competency in the foreseeable future. In a written order dated December 19, 2016, the court denied DDS’s motion (“December 2016 order”). The court held Winans could not be placed on outpatient status but rather must be placed in a secured facility unless the court found him to not be a danger to the community, which the court could not find based on the evidence. It ordered Winans’s placement at Porterville “for the evaluation and treatment required under [section] 1370.1(b)(1) . . . before a conclusion is reached that he cannot be restored to mental competency.”
On January 4, 2017, Winans appealed this order in appeal number A150108. In response to Winans’s unopposed motion, we consolidated appeals A148530 and A150108 for purposes of briefing, oral argument, and a decision.
While this appeal was pending, we asked the parties to update this court regarding Winans’s status. On November 2, 2017, the People notified us that Winans had been released from Porterville based on certification of his competency to stand trial and was in county jail. At oral argument on November 29, 2017, Winans’s counsel confirmed that he had been certified competent and returned to jail. Winan’s counsel also informed us that a contested hearing on Winans’s restoration is scheduled to be heard on December 20, 2017.
DISCUSSION
The threshold issue at oral argument was whether Winans’s appeal is now moot based on his restoration to competency. The People argued the entire appeal was moot based on Winans’s transfer out of Porterville. Winans’s counsel, who did not dispute that Winans is no longer in Porterville’s custody, disagreed.
“As a general rule, an appellate court only decides actual controversies. It is not the function of the appellate court to render opinion ‘ “ ‘ “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. [Citation.]’ [Citation.]” (People v. Rish (2008) 163 Cal.App.4th 1370, 1380.) Thus, “ ‘ “[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.” ’ ” (People v. Delong (2002) 101 Cal.App.4th 482, 486.)
People v. Lindsey (1971) 20 Cal.App.3d 742 (Lindsey) is on point. There, the superior court determined after a hearing that a criminal defendant was insane and ordered him committed to a state hospital for treatment. (Id. at p. 743.) The defendant appealed the order. (Ibid.) While his appeal was pending, the defendant was certified as sane and criminal proceedings resumed. (Ibid.) The court dismissed the defendant’s pending appeal of the original commitment as moot because “the superintendent's certification of sanity terminates the commitment, leaving no prejudicial consequences which could be ameliorated by a successful appeal.” (Id. at p. 744.)
Here, as in Lindsey, the trial court found Winans incompetent to stand trial and ordered him committed first to the state hospital and then to Porterville. Winans initially appealed from the May 2016 order revoking his outpatient status. Winans then appealed the trial court’s December 2016 order denying DDS’s petition to set aside his commitment to Porterville. But while his appeal was pending, Winans was certified competent, and he was released from Porterville and returned to county jail. In these circumstances, no meaningful relief can be effectuated by reviewing either the May 2016 or December 2016 placement orders. Since Winans is no longer committed to a state hospital, his appeal from the trial court’s outpatient status revocation and commitment orders placing him at the state hospital is moot.
Winans’s counsel proffered several reasons at oral argument for why this appeal is not moot. None of these indicate an actual controversy. Counsel explained that on December 20, 2017, there will be a contested hearing on Winans’s latest competency evaluation, noting “there is still an existing commitment order” to be reviewed. The upcoming hearing does not mean a controverted commitment order still exists. The issue before the trial court on December 20 will be the merits of Winans’s most recent certification, not the May 2016 order or the December 2016 order that were the subjects of the appeal. Winans’s December 2016 commitment order was nullified by his competency certification and release from Porterville. Counsel also expressed concern that absent a decision from this Court by the contested hearing on December 20, the trial court might defer the matter pending resolution of this appeal and Winans would “languish.” But this concern does not preserve the controversy here. Since Winans has been certified competent and returned to county jail, the earlier placement orders are superseded. Besides, the timing of our decision ameliorates counsel’s concern, and the trial court should not be constrained from proceeding as scheduled. Winans’s counsel also asserted it was important for us to clarify DDS’s right to decline treatment or restoration of an IST patient who is considered untreatable. We do not reach this issue, as any decision we make on it would amount to no more than an advisory opinion that would not grant Winans any effective relief.
We do, however, exercise our discretion to entertain Winans’s appeal of the trial court’s involuntary medication orders and its calculation of his commitment credits. An appellate court has discretion to decided cases, although moot, where a recurrence of the same controversy between the same parties is likely. (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479-480.) Such is the case here.
Involuntary Medication. Winans asks us to vacate the trial court orders authorizing his involuntarily medication with antipsychotic drugs.
In this case, after Winans was deemed incompetent for a second time, the trial court issued two orders authorizing Winans’s involuntary medication. The May 2016 order allowed the treating facility to involuntarily medicate Winans pursuant to section 1370, subdivision (a)(2)(B)(i)(I). The trial court offered no explanation and included no findings in the written order for the involuntary medication. However, Near the end of the hearing, the trial court announced: “The court is not ordering involuntary anti-psychotic medication. The court doesn’t have any evidence at this time that that is necessary, because it, apparently, is a brain–brain trauma which is the issue. There is no—actually, the court will order involuntary anti-psychotic medications. The Court is, again, relying upon the language that CONREP—about his lack of insight into the mental illness and on that basis.” The second order was in August 2016 which authorized treating facilities to involuntary medicate Winans pursuant to section 1370, subdivision (a)(2)(B)(i)(I). Like the May 2016 order, the August 2016 order contains no findings or explanation related to the need for involuntary medication. Nor was there any discussion about Winans’s medication at the hearing.
At oral argument, Winans’s counsel asserted that these involuntary medication orders are not moot because they authorize county jails to involuntarily medicate Winans without end. To the extent Winans may be subject to these orders while in custody at the county jail, we agree this issue is not moot.
The United States Supreme Court has held that “an individual has a ‘significant’ constitutionally protected ‘liberty interest’ in ‘avoiding the unwanted administration of antipsychotic drugs.’ [Citation.]” (Sell v. United States (2003) 539 U.S. 166, 178.) This interest is protected under California’s right to privacy which “clearly extends to the right to refuse antipsychotic drugs.” (In re Qawi (2004) 32 Cal.4th 1, 14.)
The Legislature codified this constitutional principle in section 1370, subdivision (a)(2)(B), which governs the trial court’s authority to order the involuntary administration of antipsychotic medication. Section 1370 requires a trial court, before issuing an order committing a defendant to a treatment facility to “hear and determine whether the defendant lacks capacity to make decisions regarding the administration of antipsychotic medication.” (§ 1370, subd. (a)(2)(B).) The trial court may authorize involuntary medication for certain purposes, namely, (1) to protect a defendant whose health is at risk if he is not medicated, but who lacks the capacity to make such decisions, (2) to protect society when a defendant poses a danger to others, and (3) to render a defendant competent to stand trial. (See § 1370, subds. (a)(2)(B)(ii)(I)-(III).) Before ordering involuntary medication to return a defendant to competence, a trial court first must find that he does not meet the criteria for the other two purposes. (§ 1370, subd. (a)(2)(B)(ii).) If the court determines the defendant has the capacity to make decisions regarding the administration of antipsychotic medication, it then must consider whether the defendant consents to the use of such medication. (§ 1370, subds. (a)(2)(B)(iv)-(v).) We review an order authorizing involuntary treatment for substantial evidence. (People v. Christiana (2010) 190 Cal.App.4th 1040, 1049–1050.)
We vacate both involuntary medication orders here. There is no indication that the court made any determinations as to whether Winans lacked the capacity to consent to antipsychotic medication as part of his treatment. Both involuntary medication orders were issued pursuant to section 1370, subdivision (a)(2)(B)(i)(I), which seeks to protect a defendant whose health is at risk if he is not medicated, but who lacks the capacity to make such decisions. (§ 1370, subd. (a)(2)(B)(i)(I).) Involuntary medication pursuant to this provision requires a trial court to hear and determine whether “[t]he defendant lacks capacity to make decisions regarding antipsychotic medication, the defendant’s mental disorder requires medical treatment with antipsychotic medication, and, if the defendant’s mental disorder is not treated with antipsychotic medication, it is probable that serious harm to the physical or mental health of the patient will result. Probability of serious harm to the physical or mental health of the defendant requires evidence that the defendant is presently suffering adverse effects to his or her physical or mental health, or the defendant has previously suffered these effects as a result of a mental disorder and his or her condition is substantially deteriorating.” (Ibid.) There is no record that either court made determinations related to any of these issues. Neither the May 2016 order nor the August 2016 order contained any written explanation or findings for the involuntary medication orders. The trial court’s only apparent finding was at the May 2016 hearing when it noted Winans’s “lack of insight into the mental illness.” The People contend this was an implicit finding under 1370, subdivision (a)(2)(B)(i)(I). But the court drew no nexus between Winans’s lack of insight and his need for antipsychotic medication. Even if Winans’s “lack of insight” were a valid finding regarding Winans’s capacity to consent, it alone would not support the involuntary medication orders. It still does not address whether Winans’s mental disorder requires treatment with antipsychotic medication, nor does it address the probability of harm to Winans’s physical or mental health if he is not treated with antipsychotic medication, both matters which require court determinations under section 1370, subdivision (a)(2)(B)(i)(I), for an involuntary medication order under that subdivision.
The People contend Winans’s assertion that the trial court did not comply with the section 1370, subdivision (a)(2)(B) is meritless. For support, the People point to the trial court’s order for Winans’s antipsychotic medication examination and CONREP’s response to the order. But neither the examination order nor CONREP’s response contains any evaluation as to Winans’s capacity to consent to make decisions regarding antipsychotic medications or whether treatment with antipsychotic medication was medically necessary for him. The examination order simply directs a county psychiatrist to examine Winans and to report on issues related to his treatment with antipsychotic medication. The CONREP response simply “remind[s] the court [that its] Minute Order admitting [Winans] shall indicate either: (a) that involuntary antipsychotic medication is necessary as part of treatment to assist [Winans] in regaining competency and provide authority to the state hospital to administer medications deemed appropriate, or (b) that [Winans] may choose to either accept or refuse antipsychotic medication as part of [his] treatment.” CONREP presents options for the court to consider, rather than setting forth a clear request for authority to administer antipsychotic medications. CONREP’s response certainly does not address whether Winans has the capacity to make decisions regarding his antipsychotic medication or whether such medication is necessary to treat Winans, or any of the other subjects identified in the court’s examination order. Nor does it state that antipsychotic medication be involuntarily prescribed due to Winans’s “high risk factors” such as his lack of insight, relationship instability, or substance abuse problems, as the People’s brief suggests.
Because the two involuntary medication orders are unsupported by any findings regarding Winans’s capacity to make decisions regarding antipsychotic medication, the orders are vacated. We need not address the parties’ other arguments with respect to Winans’s involuntary treatment.
Commitment Credits. Lastly, Winans argues the trial court ignored the substantial amount of time he was committed on his first finding of incompetence in 2013 as well as his time he spent in an outpatient facility following the second declaration of his incompetency in calculating his credit toward the three-year maximum period of confinement.
Section 1370.1, subdivision (c)(1)(A) provides that three years (or 1,095 days) is the maximum term a person may be committed to a state hospital based on a determination that the person is mentally incompetent to stand trial. (§ 1370.1, subd. (c)(1)(A).) “The three-year period . . . applies to the aggregate of all commitments for treatment for incompetency regarding the same charges.” (Cf. People v. Reynolds (2011) 196 Cal.App.4th 801, 806.) Thus, the trial court must include a defendant’s prior commitment on the same charges when calculating a subsequent commitment for incompetency. (Cf. Reynolds, supra, 196 Cal.App.4th at pp. 807–809.)
The May 2016 order indicated Winans’s maximum term was three years and credited him with 5 days of custody. The court’s August 2016 order credited Winans with 77 days as of August 4, 2016. The trial court’s tallies did not account for the full time Winans has been committed while the charges were pending against him.
Here, the first order declaring Winans incompetent and committing him was entered on October 30, 2013. He was restored to competency in a court order dated July 14, 2014. The second order deeming Winans incompetent and committing him to the state hospital was entered on May 19, 2016, but he has since been certified as competent. When calculating Winans’s commitment credits, the trial court must include both of his commitment periods on the same charges, including any days Winans was on outpatient status.
DISPOSITION
Winans’s consolidated appeals of the trial court’s order revoking Winans’s outpatient status and its order committing him to Porterville are dismissed as moot. The orders authorizing Winans’s involuntary medication are vacated. The trial court is to recalculate Winans’s commitment credits consistent with this opinion to reflect Winans’s entitlement to credit for each day of his two commitment periods on the same charges, including the days he was on outpatient status.



_________________________
Siggins, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Pollak, J.