Filed 2/16/17




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                         G052951

        v.                                            (Super. Ct. No. 09NF2515)

FARIS NADER ALSAFAR,                                  OPINION

    Defendant and Appellant.



                  Appeal from an order of the Superior Court of Orange County, David A.
Hoffer, Judge. Dismissed as moot.
                  Barbara A. Smith, under appointment by the Court of Appeal, for
Defendant and Appellant.
                  Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and
Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
                                                                                     1
              The Mentally Disordered Offenders Act (Pen. Code, § 2960 et seq.)
provides for involuntary civil commitment as a condition of parole for prisoners who are
found to have a “severe mental disorder” if certain conditions are met. (§ 2962, subds.
(a)-(f).) The commitment is for a term of one year and the district attorney may extend
the commitment annually for an additional year by filing a petition. (§ 2972, subds. (c),
(e).)
              Faris Nader Alsafar appeals from an order extending his period of
commitment to a state mental hospital as a mentally disordered offender (MDO). He
contends the trial court violated his constitutional right to equal protection when it
compelled him to testify over his objection at the trial to determine whether his
commitment should be extended. Alsafar argues that because persons subject to civil
commitment after being found not guilty by reason of insanity (NGI) have a statutory
right, pursuant to section 1026.5, subdivision (b)(7) (hereafter section 1026.5(b)(7)), not
to be compelled to testify in proceedings to extend their commitments (Hudec v. Superior
Court (2015) 60 Cal.4th 815, 832 (Hudec)), so should a person facing commitment as a
MDO. He points out that this right has been extended to commitment proceedings for
sexually violent predators (SVP) by application of equal protection principles. (People v.
Curlee (2015) 237 Cal.App.4th 709, 716-722 (Curlee).) He concludes NGI’s, SVP’s, and
MDO’s are all similarly situated with respect to civil commitment procedures. The
Attorney General makes several arguments to support her theory it was not a denial of
equal protection to treat MDO’s differently from NGI’s, and any disparate treatment was
related to a legitimate government purpose. Alternatively, she maintains any error was
harmless, applying the People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) standard of
review.


1
              All further statutory references are to the Penal Code, unless otherwise
indicated.

                                              2
              After briefing was completed in this case, our colleagues in Division Two,
of the Fourth District, published People v. Dunley (2016) 247 Cal.App.4th 1438, 1447-
1448 (Dunley), holding MDO’s, SVP’s, and NGI’s are all similarly situated with respect
to the testimonial privilege provided for in section 1026.5(b)(7). We asked the parties to
submit supplemental letter briefs discussing this recently decided opinion. In addition, it
looked as if Alsafar’s one-year commitment order may have expired while the appeal was
pending due to this court’s pressing caseload. We ordered the parties to notify the court
if there was a new commitment order, and if this ruling rendered the appeal moot.
              After considering the parties’ letter briefs, we conclude the legal reasoning
in the Dunley case is persuasive, and we adopt its holding. As for the mootness issue, the
parties discuss the fact Alsafar was recommitted on December 6, 2016, based entirely on
documentary evidence; he was not forced to testify. Because evidence of this proceeding
is not contained in our record, on our own motion we take judicial notice of the relevant
minute orders (dated October 18, 2016, and December 6, 2016), from the superior court
file in this case. (Evid. Code, §§ 455, 459.)
              We conclude the question of equal protection is a legal issue of continuing
public importance that is likely to reoccur in MDO proceedings. A reviewing court may
exercise its inherent discretion to resolve an issue rendered moot by subsequent events if
the question to be decided is of continuing public importance and is a question capable of
repetition, yet evading review. (Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195,
199.) Because Alsafar has been recommitted without being required to testify, the issue
of equal protection is now moot as to him.
              A reversal can have no practical effect or provide Alsafar with effective
relief. (People v. Gregerson (2011) 202 Cal.App.4th 306, 321 (Gregerson).)
Accordingly, we need not direct the court to hold a new hearing, but we will decide the
briefed issue to clarify the law. We dismiss the appeal as moot.



                                                3
                                               I
                In October 2009 Alsafar was convicted of arson of a structure (§ 451, subd.
(c)), and was sentenced to two years in prison. In 2013, the court determined Alsafar was
a MDO, and he was committed to a state hospital. The following year, Alsafar stipulated
to a one year extension of his commitment.
                In 2015, Alsafar opposed the district attorney’s petition for a second
extension. At the trial on the petition, 30-year-old Alsafar was called as a witness by the
district attorney and was forced to testify over his objection. Alsafar stated he suffered
from depression, hallucinations, and schizophrenia. He admitted to previously using
heroin and methamphetamine. He burned down the building in 2009 because he believed
people were after him and the fire would let him escape. He made sure no one was inside
the building before starting the fire and he called 911 afterwards to turn himself in.
                Alsafar testified he was sent to Atascadero State Hospital (Atascadero). He
believed his orthodontist was the devil because he heard his voice in the Orange County
jail. He stated he met God on his third visit to the jail, and they had a conversation.
Alsafar stated he was taking psychiatric medications that sometimes made him slur his
speech. He planned to go to University of California Irvine medical center when he was
released because he admitted he may need future psychiatric care. He conceded he heard
voices and he could not take care of himself. Alsafar did not believe he needed to be
committed to Atascadero because he was not a danger to himself or others, and he had
“learned [his] lesson” not to commit arson again.
                Alsafar stated he did not have a Wellness Recovery Action Plan (WRAP)
because he did not like to attend group meetings. However, he took his medication
voluntarily and planned to check himself into a hospital if needed. He had been homeless
before and was familiar with how to receive public benefits and other life necessities
from charity.



                                               4
              Forensic psychologist, Jennifer Bosch, testified based on her review of
4,600 pages of records, two interviews with Alsafar, and her observation of him during
his trial testimony. She was originally appointed in 2013 to assess Alsafar. Bosch began
her testimony by describing the circumstances of the underlying offense. She stated
Alsafar was living in an abandoned building and he set fire to it because he believed it
was owned by the Catholic church and children were being molested there. After
watching the building burn, he took a bus to Newport Beach and called 911 to report the
crime and turn himself in. She stated Alsafar had been a patient at Atascadero since
2010. Records showed he suffered from a schizoaffective bipolar disorder, as well as a
poly-substance dependency. She described the symptoms of these disorders and opined
Alsafar’s case was severe. Bosch also described Alsafar’s history of hospitalizations.
His first hospitalization occurred when he was 16 or 17 years old and, at that time, he
also began receiving social security due to his mental health disability.
              Bosch did not believe Alsafar’s mental disorder was in remission. In
support of this conclusion, she referred to some of Alsafar’s testimony in court. She also
described a statement he made during an interview with her, in which he stated he was a
dog and God wanted him to be a dog. She opined the records indicated he was not in
remission because he was experiencing paranoia, delusions, and hallucinations. He
believed others intended to harm him and that he could speak with God. Alsafar told her
that he did not believe he had a mental illness, and they discussed his drug usage. She
explained drug usage can “exacerbate the [mental illness] symptoms” and cause the
person to “become highly unpredictable.”
              Bosch testified Alsafar’s mental disorder was a life-long disease that would
require treatment throughout his life. She stated Alsafar could receive psychiatric help,
and assistance from social workers, nurses and psychologists at Atascadero. She opined
the best treatment plan was medication in addition to individual and group therapy. She
concluded Alsafar represented a substantial danger of physical harm to others for the

                                             5
following reasons: “[T]o start with, [Alsafar] has a long-standing history of when he’s
symptomatic of being aggressive. I think there is over at least 100, possibly 150 incident
reports from when he was in jail or incarcerated . . . even prior to becoming a [MDO].
[¶] Once he was admitted to the hospital, there is a plethora of records, notes to indicate
that he has been aggressive to both peers and staff.” Bosch recounted a violent incident
involving Alsafar that occurred just prior to her October 2015 interview with him. She
believed Alsafar needed more time at Atascadero due to his “lack of insight into his
mental illness, inability to recognize triggers, lack of tools to address substance abuse,
and historical substance abuse.”
                                              II
A. Is the Appeal Moot?
              This same issue was discussed in the Dunley case, as follows: “A case
becomes moot when a court ruling can have no practical effect or cannot provide the
parties with effective relief. [Citation.] By the nature of MDO proceedings, in which a
new commitment order must be sought every year, issues arising in such proceedings can
most often not be decided on appeal quickly enough to provide any relief to the person
committed. That is the case here. . . . A reversal of appellant’s current commitment order
would have no effect on the pending petition. However, it is appropriate to address the
issues raised in this appeal because they are important legal issues that are likely to
reoccur ‘“while evading appellate review.”’ [Citation.] Accordingly, we have chosen to
address these issues, but we will dismiss the appeal as moot. [Citation.]” (Dunley, supra,
247 Cal.App.4th at p. 1445.)
              Alsafar’s counsel argues the appeal in this case is not moot because the
Dunley case is factually distinguishable. We acknowledge the cases differ, but the
distinction does not make a difference. In the Dunley case, like in the case before us, the
recommitment order expired while the appeal was pending. (Dunley, supra, 247
Cal.App.4th at p. 1445.) The case differs from ours in that the new petition to recommit

                                              6
Dunley was denied “based on the trial court’s finding that [he] no longer [met] the
criteria for commitment as [a] MDO.” (Ibid.) Whereas, Alsafar’s recommitment petition
was granted.
               Alsafar argues the Dunley court did not hold a subsequent recommitment
rendered the appeal moot, but rather it was because “an expired and not renewed
commitment could have no practical effect on him.” He maintains that when a MDO is
not properly committed within a given year, he must be released from continued
               2
confinement. However, the case cited by Alsafar to support this theory of release is
inapt. In People v. Allen (2007) 42 Cal.4th 91, 101-105 (Allen) the Supreme Court held
the provisions in section 2972, subdivision (e), were not directory but mandatory, and the
People’s failure to file a new petition before the end of the commitment period of one
year violated Allen’s due process rights and took him out of the jurisdiction of the MDO
Act. The issue decided in the Allen case was whether the trial court had authority to
extend an involuntary MDO commitment after the prior commitment had terminated.
(Id. at p. 94.) No such jurisdictional concerns exist in Alsafar’s case. There is no
question the prosecutor timely filed the recommitment petition and the involuntary
commitment was never discontinued. The court did not lose jurisdiction under the MDO
Act.
               If this appeal had been heard and decided before the one-year timeline, we
could have given Alsafar the effective remedy of a rehearing on the petition.
Unfortunately, the time has passed and a rehearing would have no effect because Alsafar
has been recommitted pursuant to a properly filed petition and after a hearing in which he
received the relief he seeks from us.



2
             Alsafar’s counsel suggests her client could be confined under another
commitment scheme such as the Lanterman-Petris-Short Act (LPS Act). (Welf. & Inst.
Code, § 5000 et seq.)

                                             7
              We have “inherent power to retain the matter, even if it is technically moot.
[Citations.]” (People v. Williams (1999) 77 Cal.App.4th 436, 441, fn. 2 (Williams)
[although appeal from expired MDO commitment order, court reached procedural issues
that were “important and of continuing interest”].) “‘As a general rule, an appellate court
only decides actual controversies. It is not the function of the appellate court to render
opinions “‘“‘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.] . . . [¶] But appellant raises
important procedural issues concerning section 2972 that are ‘“‘capable of repetition, yet
evading review.’”’ [Citations.]” (Gregerson, supra, 202 Cal.App.4th at p. 321; accord,
People v. Rish (2008) 163 Cal.App.4th 1370, 1380.)
              We conclude Alsafar has raised an important procedural issue that is not
only of “important and of continuing interest” but is also one capable of repetition, but
evading review. (Gregerson, supra, 202 Cal.App.4th at p. 321; Williams, supra, 77
Cal.App.4th at p. 441, fn. 2.) We reject the Attorney General’s argument to ignore the
issue because recent cases like Curlee and People v. Landau (2016) 246 Cal.App.4th 850
         3
(Landau) “demonstrate that the issue presented here is not likely to evade review in
future cases.” Those cases held SVP’s and NGI’s are similarly situated for purpose of
whether they may be compelled to testify at their commitment hearings. (Landau, supra,
246 Cal.App.4th at p. 864; Curlee, supra, 237 Cal.App.4th at p. 721.) In the respondent’s
brief in this case, the Attorney General argued NGI’s and MDO’s are not similarly
situated and the holding in Curlee “was incorrect and should not be followed.”
Moreover, the Attorney General has taken the position this court need not follow the

3
             This court agreed with the reasoning in Curlee, supra, 237 Cal.App.4th
709, that SVP’s were entitled to the same procedural protection as NGI’s. (Landau,
supra, 246 Cal.App.4th at p. 864.)

                                               8
Dunley decision because it is from a different division of the Fourth District (not because
the reasoning is flawed). Accordingly, we will address the merits of Alsafar’s appeal.
B. Was there an Equal Protection Violation?
              Alsafar maintains he was denied equal protection when the trial court
required him to testify, over his objection, for the district attorney at his MDO
recommitment hearing. The trial court agreed with the district attorney’s argument that
case authority holding a NGI could not be compelled to testify (Hudec, supra, 60 Cal.4th
815), did not apply to a MDO. The trial court did not have the benefit of two published
opinions holding SVP’s were entitled to the same procedural protections as MDO’s.
(Landau, supra, 246 Cal.App.4th at p. 864; Curlee, supra, 237 Cal.App.4th at p. 721.)
More importantly, the court did not have the advantage of the decision in Dunley, supra,
247 Cal.App.4th at pp. 1447-1450, holding MDO’s are similarly situated to NGI’s and
SVP’s with respect to the testimonial privilege and for purposes of equal protection. We
agree with Dunley’s well reasoned decision, and note the Attorney General does not point
to any reason to reconsider the issue.
              The Attorney General also asserts that any error in compelling Alsafar’s
testimony was harmless under Watson, supra, 46 Cal.2d 818. She asserts Watson applies
because the right not to be compelled to testify in a MDO hearing arises solely from state
law. Applying this standard, the Attorney General argues that even if there was an equal
protection violation, the error was harmless because Alsafar’s testimony was cumulative
to other evidence introduced through other witnesses.
              We need not address the issue of which standard of review applies because
we have dismissed the appeal as moot. However, we direct the Attorney General’s
attention to the large body of case law that agrees to the following: “‘By calling the
person in its case-in-chief, the state is essentially saying that his or her testimony is
necessary for the state to prove its case. We have no doubt that a committee so
compelled to testify is prejudiced under these circumstances. The California Supreme

                                               9
Court noted in Cramer v. Tyars (1979) 23 Cal.3d 131, that permitting the jury to observe
the person sought to be committed and to hear him speak and respond provided ‘the most
reliable proof and probative indicator of the person’s present mental condition.’
[Citation.] As such, we cannot conclude that compelling [the committee] to testify, even
if his testimony was in some regards cumulative to that of other witnesses, was harmless
error.” [Citation.]’ (. . . Curlee, supra, 237 Cal.App.4th at p. 722.)” (Landau, supra, 246
Cal.App.4th at p. 865; accord People v. Haynie (2004) 116 Cal.App.4th 1224, 1230
[“The right to not be compelled to testify against oneself is clearly and relevantly
implicated when a person is called by the state to testify in a proceeding to recommit him
or her even if what is said on the witness stand is not per se incriminating”].)
                                             III
              The appeal is dismissed as moot.




                                                   O’LEARY, P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.




                                             10
