Filed 10/2/18
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                       DIVISION FOUR


THE PEOPLE,
        Plaintiff and Respondent,                     A148228

v.                                                    (Alameda County Super. Ct.
RALPH PIPKIN,                                         No. 02052624)
        Defendant and Appellant.


        Ralph Pipkin (Pipkin or appellant) appeals from the trial court’s order denying his
motion to dismiss and recommitting him for treatment under the Mentally Disordered
Offender Act (MDO Act) (Pen. Code, § 2960 et seq.)1. The sole issue before us is
whether the challenged recommitment order was fatally flawed because the underlying
felony offense supporting Pipkin’s original commitment as a mentally disordered
offender (MDO) has been reduced to a misdemeanor in accordance with Proposition 47.
However, Pipkin’s MDO recommitment expired on October 13, 2016—while the instant
appeal was pending—and the Alameda County District Attorney (District Attorney)
declined to file a successive petition to extend it for an additional year. Because Pipkin is
no longer subject to involuntary civil commitment under the MDO Act, we dismiss this
matter as moot.
                                      I. BACKGROUND
        In July 2011, Pipkin was sentenced to state prison for two years after his probation
was revoked with respect to a 2009 felony grand theft conviction (§ 487). The
circumstances underlying this conviction are described in the record as follows: “Mr.

        1
            All statutory references are to the Penal Code unless otherwise specified.


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Pipkin grabbed a female victim’s sweatshirt and stated ‘give me your phone.’ Mr. Pipkin
then punched her in the mouth. A male witness attempted to intervene, and Mr. Pipkin
punched the male victim in the jaw.” As a condition of parole with respect to this
qualifying offense, Pipkin was committed to Atascadero State Hospital on October 14,
2011, for treatment as an MDO in accordance with section 2962.2 His parole period was
scheduled to expire on October 13, 2014.
       On June 6, 2014, prior to Pipkin’s release from parole, the District Attorney filed a
petition pursuant to section 2970 seeking Pipkin’s continued commitment as an MDO for
an additional year—from October 13, 2014, to October 13, 2015. On September 5, 2014,
the petition was granted in accordance with a stipulation filed by appellant. Thereafter,
on May 14, 2015, the District Attorney filed a recommitment petition for the one-year
period beginning October 13, 2015. However, on August 10, 2015, Pipkin’s above-
described qualifying conviction for grand theft was reduced to a misdemeanor pursuant to
Proposition 47.
       As a consequence, on August 24, 2015, appellant filed a motion to dismiss the
pending recommitment petition, arguing that further commitment as an MDO was not
authorized given that his qualifying conviction must now—in accordance with
Proposition 47—be treated as a misdemeanor “for all purposes.” (§ 1170.18, subd. (k).)
After further briefing and argument, the trial court, on March 4, 2016, denied Pipkin’s
motion to dismiss and granted the recommitment petition for the period ending October


       2
         Pursuant to section 2962, the six criteria that must be proven to support an
offender’s initial designation as a MDO include the following: (1) that the offender
suffers from a severe mental disorder; (2) that the disorder is not in remission or cannot
be kept in remission without treatment; (3) that the offender poses a risk of danger to
others; (4) that the offender’s severe mental disorder was a cause or aggravating factor in
the commission of the underlying crime; (5) that the offender was treated for at least 90
days preceding his or her release; and (6) that the underlying crime was a violent crime as
enumerated in section 2962, subdivision (e). (See Lopez v. Superior Court (2010)
50 Cal.4th 1055, 1061–1062 (Lopez), disapproved on other grounds as stated in People v.
Harrison (2013) 57 Cal.4th 1211, 1230, fn. 2 (Harrison); Harrison, supra, 57 Cal.4th at
p. 1218, citing § 2962.)


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13, 2016. Pipkin timely filed a notice of appeal, challenging the trial court’s
determination. After Pipkin’s MDO commitment expired on October 13, 2016, no
further petition for recommitment was filed.
                                     II. DISCUSSION
       As a general rule, “ ‘ “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.” ’ ” (Eye Dog
Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.)
Thus, an “ ‘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.’ ” (Building a Better Redondo, Inc. v. City of Redondo Beach (2012)
203 Cal.App.4th 852, 866 (Building a Better Redondo); see also Giles v. Horn (2002)
100 Cal.App.4th 206, 226–227.) Put another way, “ ‘[a]n appeal should be dismissed as
moot when the occurrence of events renders it impossible for the appellate court to grant
appellant any effective relief.’ ” (Brown v. California Unemployment Ins. Appeals Bd.
(2018) 20 Cal.App.5th 1107, 1116, fn. 6.) In this case, Pipkin acknowledges that
appellate courts generally decide only actual controversies. He further concedes that this
matter is “technically moot” because his involuntary MDO commitment expired in
October 2016.
       Nevertheless, appellant urges us to reach the merits of his challenge, arguing that
it involves an important matter of public interest that is likely to recur, yet evade review.
It is true that the general rule regarding mootness “is tempered by the court’s
discretionary authority to decide moot issues.” (Building a Better Redondo, supra,
203 Cal.App.4th at p. 867.) For instance, as appellant stresses, “[w]hen an action
involves a matter of continuing public interest that is likely to recur, a court may exercise
an inherent discretion to resolve that issue, even if an event occurring during the
pendency of the appeal normally would render the matter moot.” (Ibid.; see also Bullis
Charter School v. Los Altos School Dist. (2011) 200 Cal.App.4th 1022, 1032–1035


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[allocation of school district facilities to charter schools issue of broad public interest that
is likely to recur because allocation process is an annual one; case not moot despite
expiration of the school year]; Gilb v. Chiang (2010) 186 Cal.App.4th 444, 460 [a court
“may exercise an inherent discretion” to resolve an otherwise moot matter if it involves a
question of broad public interest].) And, indeed, in the MDO context—where the
duration of the civil commitment at issue is often shorter than the appellate process—
courts have frequently exercised their discretion to decide technically moot questions on
this basis. (See, e.g., Harrison, supra, 57 Cal.4th at pp. 1217–1218 [scope of criteria
that must be proved to trier of fact at hearing challenging initial MDO certification];
People v. Dunley (2016) 247 Cal.App.4th 1438, 1442–1443, 1445 [right not to testify at
MDO recommitment proceeding]; People v. Rish (2008) 163 Cal.App.4th 1370, 1373,
1380–1381 [sua sponte duty of trial court in MDO proceeding to consider suitability for
outpatient treatment]; People v. Williams (1999) 77 Cal.App.4th 436, 440 & 441, fn. 2
[failure to meet statutory deadlines for MDO trial].)
       Undeniably, the issue raised by appellant in this case is an important legal matter
that is of broad interest both to MDOs, specifically, and to the public in general.
“Enacted in 1985, the MDO Act requires that an offender who has been convicted of a
specified felony related to a severe mental disorder and who continues to pose a danger to
society receive appropriate treatment until the disorder can be kept in remission.
[Citation.] ‘The MDO Act has the dual purpose of protecting the public while treating
severely mentally ill offenders.’ ” (Harrison, supra, 57 Cal.4th at p. 1218.) Moreover,
our high court has repeatedly acknowledged the “significant liberty interests associated
with involuntary civil commitment” such as that authorized by the MDO Act. (Lopez,
supra, 50 Cal.4th at p. 1066; see also People v. Blackburn (2015) 61 Cal.4th 1113, 1119.)
       If, as Pipkin suggests, the redesignation of his qualifying offense as a
misdemeanor means that he no longer met the criteria for continued MDO commitment,
he was entitled to release. In fact, a number of courts—including our Supreme Court—
have concluded that the validity of a commitment or recommitment for mental health
treatment depends on the validity of the underlying offense upon which that commitment


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or recommitment was predicated. (See In re Smith (2008) 42 Cal.4th 1251 [civil
commitment under Sexually Violent Predator Act not authorized after qualifying
conviction reversed on appeal]; In re Bevill (1968) 68 Cal.2d 854 [recommitment as
mentally disordered sex offender invalid where statute on which the qualifying
conviction was based was subsequently declared unconstitutional]; People v. J.S. (2014)
229 Cal.App.4th 163, 170–171 [challenge to initial MDO commitment not moot despite
expiration of initial commitment period because “[o]bviously, if an offender’s initial
commitment is improper, any extended commitment would also be improper”]; People v.
Crivello (2011) 200 Cal.App.4th 612 [because appellant was never successfully
committed as an MDO under section 2962, he could not properly be recommitted
pursuant to section 2970]; People v. Hayes (2003) 105 Cal.App.4th 1287 [recommitment
as MDO improper where underlying offense was not a qualifying crime under the MDO
Act].) Of course, the distinguishing factor in all of these cases is that the initial
commitment was found to be legally improper from the outset. Thus, it could not be
viewed as supplying the requisite foundation for subsequent recommitments. Here, in
contrast, no one disputes that Pipkin’s initial MDO designation was legally sound at the
time it occurred. Thus, the interesting question before us is whether later redesignation of
a qualifying offense under Proposition 47 should be viewed as destroying the
foundational facts necessary to support an MDO’s current recommitment, even when that
MDO’s initial commitment was entirely proper.
       As weighty as this issue is, however, it is impossible for us to conclude that it will
evade review. In fact, the Fourth District recently addressed the exact question,
concluding that the redesignation of a qualifying offense as a misdemeanor pursuant to
Proposition 47 does not preclude recommitment as an MDO. (People v. Goodrich (2017)
7 Cal.App.5th 699, 705–706.) In reaching this decision, the Goodrich court relied on
Supreme Court precedent characterizing the six criteria required for initial MDO
certification pursuant to section 2962 as either “ ‘ “static” ’ ” or “capable of change over
time.” (Id. at p. 708.) Specifically, the Supreme Court has held that all six of the
section 2962 criteria “must be present at the time of the State Department of Mental


                                               5
Health’s and Department of Correction and Rehabilitation’s determination that an
offender, as a condition of parole, must be treated by the State Department of Mental
Health. The first three criteria outlined in section 2962 are capable of change over time,
and must be established at each annual review of the commitment. [Citations.] These
criteria require proof that an offender suffers from a severe mental disorder, that the
illness is not or cannot be kept in remission, and that the offender poses a risk of danger
to others. [Citation.] The latter three criteria outlined in section 2962—that the
offender’s severe mental disorder was a cause or aggravating factor in the commission of
the underlying crime, that the offender was treated for at least 90 days preceding his or
her release, and that the underlying crime was a violent crime as enumerated in
section 2962, subdivision (e)—are considered ‘static’ or ‘foundational’ factors in that
they ‘concern past events that once established, are incapable of change.’ ” (Lopez,
supra, 50 Cal.4th at p. 1062, italics added.) Static factors need only be established at the
time of the initial commitment proceeding. (Id. at pp. 1063–1064; People v. Cobb (2010)
48 Cal.4th 243, 252.)
       Of course, in the wake of Proposition 47, the character of the underlying crime has
proven to be significantly less immutable than was likely envisioned by our high court.
Nevertheless, Goodrich relies on this distinction to support its determination that
redesignation of a qualifying offense as a misdemeanor does not preclude later MDO
recommitment. Specifically, the court reasoned that “there is no requirement that the
People present evidence to establish the existence of the three ‘static’ criteria . . . at
a recommitment proceeding. . . . Thus, at Goodrich’s recommitment proceeding, the
court was not required to consider whether Goodrich had served a sentence
for any offense. Goodrich’s current commitment is not predicated upon his felony
conviction; rather, it is predicated on his current mental state and dangerousness. His
prior felony conviction is not a factor bearing on his current recommitment. It is
undisputed that, at the time he was initially committed as an MDO, he had suffered a
felony conviction for which he served a sentence in prison and that the initial
commitment was proper. Nothing about Proposition 47 changes this.” (Goodrich, supra,


                                                6
7 Cal.App.5th at pp. 710–711.) The appellate court bolstered its analysis by
characterizing Goodrich as seeking a “retroactive collateral change to his initial
commitment as an MDO” and concluded that the electorate, in enacting Proposition 47,
intended only limited, prospective relief, and then only for “ ‘ “certain offenders
convicted of nonserious and nonviolent property and drug crimes.” ’ ” (Id. at p. 711.)
Since an MDO, by definition, suffers from a severe mental disorder, was convicted of a
qualifying serious or violent felony, and continues to represent a “ ‘substantial danger of
physical harm to others,’ ” the Goodrich court opined that applying Proposition 47
“retroactively for the collateral purpose of invalidating an initial MDO commitment long
after it was properly imposed would be at odds with the purpose intended by the voters.”
(Ibid.)
          We do not find the issue to be as clear-cut as Goodrich suggests. Even though the
People need not establish the existence of the qualifying conviction at a recommitment
proceeding, it does not necessarily follow that the validity of that recommitment is not
still premised upon the continuing existence of the qualifying conviction.3 Moreover,
while the electorate admittedly intended the remedies available under Proposition 47 to
be limited to nonserious and nonviolent property and drug crimes, it is not immediately
obvious how that same electorate would react upon learning that throwing some punches
in pursuit of a cell phone (a crime now classified by that electorate as a misdemeanor)
could subject an offender to indefinite civil commitment. However, several unpublished
decisions have since adopted the Goodrich analysis, and the Supreme Court has granted
review in one such case on the precise issue currently before us. (People v. Foster,
review granted June 13, 2018, S248046.) In our view, this knotty question—implicating,
as it does, significant liberty interests and requiring the interpretation of statutes enacted
by both the Legislature and the electorate, the appropriate harmonization of which is by

          3
        In this regard, we note that the Supreme Court has recently concluded that the
“misdemeanor for all purposes” provision in Proposition 47 “operates prospectively—by
having ameliorative effect on any new collateral consequence imposed after a successful
Proposition 47 resentencing.” (People v. Buycks (2018) 5 Cal.5th 857, 876, italics added.)


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no means clear—is eminently suitable for definitive resolution by our high court. Given
these circumstances, we can see no reason to add our voice to the debate when we can
offer no meaningful relief in the case before us.
                                   III. DISPOSITION
       The appeal is dismissed as moot.




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                                                   _________________________
                                                          REARDON, J.


We concur:


_________________________
STREETER, ACTING P. J.


_________________________
LEE, J.*




*Judge of the Superior Court of California, County of San Mateo, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

A148228 People v. Pipkin




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Trial Court:                            Alameda Superior Court



Trial Judge:                            Hon. Vernon K. Nakahara



Counsel for Defendant and               Brendon D. Woods
Appellant:                              Public Defender
                                        Margo George
                                        Deputy Public Defender
                                        Michael S. McCormick
                                        Assistant Public Defender



Counsel for Plaintiff and Respondent:   Xavier Becerra
                                        Attorney General
                                        Gerald A. Engler
                                        Chief Assistant Attorney General
                                        Jeffrey M. Laurence
                                        Senior Assistant Attorney General
                                        René A. Chacȯn
                                        Supervising Deputy Attorney General
                                        Nanette Winaker
                                        Deputy Attorney General




A148228 People v. Pipkin



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