Filed 2/19/14 P. v. Arcelus 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066266
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CF06902400)
                   v.

MICHAEL SCOTT ARCELUS,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Jon N.
Kapetan, Judge.
         Paul Bernstein, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and
Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Poochigian, Acting P.J., Detjen, J., and Franson, J.
                                  INTRODUCTION
      Appellant, Michael Scott Arcelus, was charged with attempted second degree
murder (Pen. Code, §§ 664 & 187, subd. (a))1 and assault on a person with a machine gun
(§ 245, subd. (a)(3)). Arcelus was found not guilty by reason of insanity. On September
25, 2007, Arcelus was committed to the California Department of Mental Health and sent
to Atascadero State Hospital. Arcelus arrived at Napa State Hospital on April 7, 2010,
and since that time until a hearing for community release on November 2, 2012, remained
free of psychotic symptoms.
      On February 3, 2012, Arcelus filed a petition for release based upon restoration of
his sanity pursuant to section 1026.2. This petition was withdrawn by his counsel on
February 16, 2012. In August 2012, Dr. Patricia Tyler, a psychiatrist and Medical
Director of Napa State Hospital, prepared an assessment and evaluation report
recommending that Arcelus be placed in a Community Release Program (CONREP),
because he was no longer psychotic. In September 2012, the Central California
CONREP Program Clinician, Dr. Thomas Lee, prepared a recommendation that Arcelus
be placed on CONREP.
      On October 19, 2012, Central California CONREP filed an addendum report
withdrawing its request that Arcelus be placed on CONREP. On October 19, 2012,
Arcelus’s counsel appeared before the trial court, acknowledged that the local CONREP
agency had withdrawn its CONREP recommendation, and made a motion “to set a
contested hearing.” The court granted the motion.
      The evidence presented during the hearing from Dr. Patricia Tyler was that
Arcelus no longer suffered from a mental illness which had been caused by drug
addiction. Arcelus had been drug free since his transfer to Napa State Hospital and had
not suffered from paranoia, delusions, or psychosis since May 2010. In addition to being
1     Unless otherwise noted, all statutory references are to the Penal Code.



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free of mental illness, Arcelus was no longer a danger to himself or others. Dr. Tyler’s
recommendation was to place Arcelus on CONREP.
       Central California CONREP rejected CONREP for Arcelus because he was
attacked in his own room by another patient. Dr. Tyler testified, however, that the other
patient initiated the attack. Without making expressed or implied findings concerning
Arcelus’s sanity, the trial court denied Arcelus’s request for placement into CONREP ─
commenting that it would not give the benefit of the doubt to somebody who committed
Arcelus’s crime. Arcelus appealed the trial court’s denial of CONREP.
       On October 3, 2013, while the instant appeal was pending, Fresno Superior Court
Judge Houry Sanderson conducted a new hearing and granted Arcelus CONREP. We
gave the parties notice of our intention to take judicial notice of this latest development,
as well as providing them with an opportunity to address the issue of whether the instant
appeal was moot. Appellate counsel replied with a letter stating that he had no objection
to this court taking judicial notice of the proceedings before Judge Sanderson and that he
had not been informed of them by his client or his client’s trial counsel.
       On January 29, 2014, we took judicial notice of the proceedings before Judge
Sanderson pursuant to Evidence Code section 459, subdivision (d). We conclude that
there is no relief we can provide Arcelus that he has not already received and dismiss this
appeal as moot.
                                       MOOTNESS
       Appellant contends the trial court abused its discretion in denying the petition for
outpatient release. While this appeal was pending, however, the trial court placed
Arcelus on CONREP.
       The question before this court is whether the instant appeal should be dismissed as
moot. As a general rule, appellate courts only decide actual controversies. It is not the
function of an appellate court to render an opinion upon a moot question or an abstract
proposition. Appellate courts do not declare principles or rules of law which cannot

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affect the matter in issue in the case before it. A case is 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.)
       An action originally based on a justiciable controversy cannot be maintained on
appeal if all the issues raised therein have become moot by subsequent acts or events.
Reversing such a case would have no practical effect, and the appeal should be dismissed.
(People v. DeLong (2002) 101 Cal.App.4th 482, 486; In re Dani R. (2001) 89
Cal.App.4th 402, 404.)
       People v. Lindsey (1971) 20 Cal.App.3d 742 (Lindsey) is directly on point here. In
Lindsey, the superior court determined after a hearing that a criminal defendant was
insane and ordered him committed to a state hospital. The defendant appealed the order.
During the pendency of the appeal, the defendant was certified as sane and criminal
proceedings resumed. (Id. at p. 743.) The court in Lindsey 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, italics added.)
       Lindsey clearly controls the resolution of the instant case. Here, as in Lindsey, the
superior court found appellant was not entitled to release on CONREP, appellant filed an
appeal from the court’s judgment on that issue, and in the interim, appellant was
apparently restored to competency and placed on CONREP. The subsequent proceeding
has rendered moot the court’s earlier finding on November 2, 2012. This case is not one
where appellant may suffer future collateral disabilities as a result of the challenged
ruling. The appropriate remedy is dismissal. (Lindsey, supra, 20 Cal.App.3d at p. 744.)
                                      DISPOSITION
       This appeal is dismissed as moot.




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