Rudy Kraft III, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Ismael A. Castro and Renu R. George, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. 15CRAD682746)
THE COURT APPEAL from an order of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Rudy Kraft III, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Ismael A. Castro and Renu R. George, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Peña, J. and Smith, J.
Appellant Shelby P. is a patient at Coalinga State Hospital (hospitalized after being committed as a sexually violent predator (SVP)). The Department of State Hospitals (Department) filed a petition seeking an order for involuntary administration of psychotropic medication to Shelby. After an evidentiary hearing, the superior court issued the order for involuntary treatment. Shelby appeals from this order, which expired July 20, 2016. We dismiss the appeal as moot.
FACTUAL AND PROCEDURAL SUMMARY
Shelby was initially committed to the hospital as an SVP in 2006 pursuant to Welfare and Institutions Code section 6604. On May 28, 2015, the Department filed a petition seeking an order authorizing the involuntary administration of psychotropic medication to Shelby. The petition alleged that Shelby was a danger to himself or others unless administered psychotropic medication, and that he had a history of "noncompliance with taking psychotropic medications."
Shelby was diagnosed as having schizoaffective disorder, pedophilia, frotteurism, and antisocial personality disorder; he also had a history of abusing alcohol, cannabis, and amphetamines. Shelby lacked insight into his mental illnesses and was often noncompliant in taking medication.
The petition alleged that Shelby had a "long history of becoming extremely angry and physically and verbally aggressive at the slightest provocation." The petition set forth the details of 18 separate incidents of such behavior from October 21, 2013, through February 12, 2015. The petition alleged there were no means of rendering Shelby nondangerous other than to administer psychotropic medication. The petition was verified by Dr. Deepak Kumar, a staff psychiatrist who was treating Shelby.
The public defender was appointed to represent Shelby. A hearing on the petition was held on July 20, 2015.
Dr. Wade Exum, a staff psychiatrist at the hospital, testified at the hearing. The parties stipulated that Dr. Exum was an expert in the field of psychiatry and related use of medications to treat psychiatric conditions. Dr. Exum testified that Shelby was a patient assigned to his caseload in 2012, 2013, and again in 2015. Dr. Exum testified he discussed with Shelby the risks and advantages of taking psychotropic medication; however, Shelby did not believe he had a mental illness and did not believe he needed any medication. Dr. Exum opined that Shelby was not competent to make a rational decision regarding psychotropic medication.
Dr. Exum testified that Shelby was involved in 15 incidents of violence in the year prior to the filing of the petition, including one instance where he punched a nurse. Dr. Exum opined that medication would mitigate the symptoms that lead to assaultive behavior on Shelby's part.
On July 20, 2015, the superior court issued its order authorizing treatment of Shelby by means of involuntary administration of psychotropic medication. The grounds for issuance of the order were that Shelby lacked capacity to refuse treatment and was a danger to others. The order was to remain in effect for one year and expired on July 20, 2016.
This is an appeal from an order allowing the involuntary administration of psychotropic medication to Shelby. The order appealed from expired on July 20, 2016. In People v. Cheek (2001) 25 Cal.4th 894, 897-898 and People v. Hurtado (2002) 28 Cal.4th 1179, 1186, the California Supreme Court concluded that a proceeding in which a SVP seeks relief from a commitment order is rendered moot when the commitment term expires during the pendency of the appeal. Accordingly, we find the same principle holds true for appeals of orders allowing involuntary administration of psychotropic medication to a SVP.
It is the function of an appellate court to decide actual controversies by a judgment that can be carried into effect. It cannot render opinions on moot questions or declare principles of law that cannot affect the matter in issue in the case before it. (City of Los Angeles v. County of Los Angeles (1983) 147 Cal.App.3d 952, 958.) When, during the pendency of an appeal an event occurs that renders it impossible for an appellate court to grant any effectual relief should it decide the case in favor of the appellant, the court will not proceed to a formal judgment but will dismiss the appeal. (Ibid.)
When an appeal raises an issue that is likely to recur while evading appellate review and involves a matter of public interest, an appellate court may exercise its discretion to decide the issue for guidance in future proceedings before dismissing the appeal as moot. (People v. Gregerson (2011) 202 Cal.App.4th 306, 321 (Gregerson).) No such issues are present in Shelby's case. With respect to the sufficiency of the evidence and challenges to admission of evidence, the issue is not reasonably capable of recurring in that the evidence presented at subsequent hearings, if any, will necessarily vary based upon Shelby's response and amenability to treatment.
Appellate courts have addressed the merits of an appeal from an expired order in very limited cases. In People v. Rish (2008) 163 Cal.App.4th 1370, 1381, the commitment order under the Mentally Disordered Offenders Act (MDO Act) had expired, but the appellate court addressed the legal issue of whether a trial court had a sua sponte duty under section 2972 to consider outpatient treatment. Such an issue involved a matter of public interest likely to recur. In People v. Hernandez (2011) 201 Cal.App.4th 483, 487 and footnote 3, this court addressed the merits of the appeal after the commitment order appealed from had expired because the committee had stipulated to a further recommitment order, this court was notified of the stipulation during the pendency of the appeal, and thus effective relief could be granted if the appeal was decided in the appellant's favor. In People v. Jenkins (1995) 35 Cal.App.4th 669, 672 and footnote 2, the appellate court addressed the issue of whether the MDO Act violated ex post facto laws in its application, even though the commitment order appealed from had expired.
We cannot grant any effectual relief to Shelby, even if the evidence presented during the hearing that resulted in the order for involuntary administration of psychotropic medication that is the subject of this appeal was insufficient or erroneously admitted, because of the expiration of the appealed from order.
When the harm a person seeks to avoid - forced administration of psychotropic medication - cannot be undone after the fact, the appropriate remedy is to seek immediate review of the order by writ petition. (Sell v. United States (2003) 539 U.S. 166, 176-177.) Unless an immediate challenge to the order is made by way of a writ, an appellate court cannot afford any effective relief. (Ibid.) There is no indication in the record that Shelby filed a writ proceeding; the only action taken after the issuance of the order was to file a notice of appeal.
ACCMS does not disclose any other proceeding filed by Shelby except for the 1994 appeal of his underlying conviction in our case number F022573. --------
Therefore, because the term of the order appealed from expired on July 20, 2016, thereby rendering it impossible for this court to grant any effectual relief to Shelby, and the issue raised by Shelby does not involve a matter of public interest, nor is it likely to recur while evading appellate review, we exercise our discretion to dismiss this appeal as moot. (Gregerson, supra, 202 Cal.App.4th at p. 321.)
The appeal is dismissed as moot.