Filed 12/10/13 P .v. Cruz CA4/1
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                     COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                    DIVISION ONE

                                            STATE OF CALIFORNIA


THE PEOPLE,                                                          D062781

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. Nos. CR100787,
                                                                     CR125680)
RICHARD LARRY CRUZ,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Amalia L.

Meza, Judge. Dismissed.

         Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine

Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
       Richard Larry Cruz appeals from an order extending his commitment to the

California Department of State Hospitals, as a mentally disordered offender (MDO). He

challenges the sufficiency of the evidence to support his commitment as an MDO and

argues the trial court failed to properly consider his request for outpatient treatment. Cruz's

term of commitment expired on August 10, 2013, thereby rendering it impossible for the

court to grant him any effectual relief. He does not raise any legal issues that are matters of

public interest or that are likely to recur while evading appellate review. Thus, we exercise

our discretion to dismiss this appeal as moot.

                                      BACKGROUND

       In 1989, Cruz pleaded guilty to the crime of assault with a deadly weapon or by

means of force likely to produce great bodily injury. He was placed on probation. A few

years later, he pleaded guilty to the crime of assault with intent to commit rape and was

sentenced to four years in prison. In 1994, Cruz was committed to a state hospital as an

MDO. His commitment has been annually extended since that date. He appeals from the

most recent recommitment order.

                                       DISCUSSION

       In processing the appeal, we discerned that Cruz's commitment term expired on

August 10, 2013. Thus, we requested supplemental letter briefs from the parties on

whether the appeal is moot and should be dismissed. Cruz contends his appeal is not moot

because the sufficiency of the evidence issue could lead to his release thereby barring the

People from filing a new petition, and the issues raised in his appeal are likely to recur and




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evade appellate review. The People argue the appeal is moot because it raises issues not

reasonably capable of recurring and this court cannot grant Cruz any effectual relief.

       "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.]' " (People v. Rish (2008) 163 Cal.App.4th 1370, 1380 (Rish).) Although an

appeal may be moot, an appellate court retains discretion to decide it if there is an

important public interest involved that will continue to recur and evade review. (People v.

Gregerson (2011) 202 Cal.App.4th 306, 321.)

       Appellate courts have considered the merits of an appeal from an expired MDO

commitment order in limited cases. In Rish, supra, 163 Cal.App.4th at p. 1381, although

the appellant's MDO commitment period had expired, the court addressed the legal issue of

whether a trial court had a sua sponte duty to consider outpatient treatment. The court

found the issue was a matter of public interest likely to recur. (Ibid.) Similarly, in People

v. Jenkins (1995) 35 Cal.App.4th 669, 672, fn. 2, the court addressed the issue of whether

the MDO Act violated ex post facto principles because "the issue [was] of recurring

importance and [was] likely to evade appellate review due to the time constraints of the

MDO commitment." In People v. Hernandez (2011) 201 Cal.App.4th 483, 487, fn. 3, the

court considered the merits of the appeal because, after it was filed, the appellant stipulated

to a further one-year recommitment which may have been predicated on the pendency of


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the appeal. Likewise, in People v. Fernandez (1999) 70 Cal.App.4th 117, 134-135,

although the appeal was moot because the commitment period had expired, the court

addressed the issue presented because it affected the lower court's right to continue

jurisdiction under the original commitment as well as the recommitment.

       In contrast to those cases, Cruz's appeal does not involve issues that concern matters

of public interest and that are likely to recur while evading review. He raises issues

concerning the sufficiency of the evidence supporting his recommitment and whether the

trial court properly considered his request for outpatient treatment. These issues are not

reasonably capable of recurring in that the evidence presented at any future recommitment

hearings will necessarily vary based upon Cruz's response to treatment and his condition at

the time of the subsequent hearing. Moreover, the issues presented are particular to his

case, do not go to fundamental jurisdiction, and are not novel questions of unsettled law.

We simply cannot grant him any effectual relief and decline to exercise our discretion to

address the merits of the case.

                                       DISPOSITION

       The appeal is dismissed as moot.


                                                                              MCINTYRE, J.
WE CONCUR:



            HALLER, Acting P. J.



                  MCDONALD, J.


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