APPEAL from a judgment of the Superior Court of Sacramento County, Troy L. Nunley, Judge. (Super. Ct. No. JV130689)
The opinion of the court was delivered by: Raye , P. J.
CERTIFIED FOR PUBLICATION
A prosecutor charged 13-year-old O.P., who is mildly mentally retarded,*fn1 with assault with a deadly weapon; a court found he was not competent to stand trial, and pursuant to a challenged special instruction, the jury may have found him dangerous solely because he is an incompetent defendant charged with a violent felony. He contends the special instruction renders his civil commitment unconstitutional. (Welf. & Inst. Code, § 6500.)*fn2 We agree.
Following an 11-day jury trial, the court committed O.P. to Porterville Developmental Center (Porterville) and set a recommitment hearing for September 27, 2011. Since O.P.'s appeal will be decided beyond his commitment period, his appeal is technically moot. (People v. Bailie (2006) 144 Cal.App.4th 841, 844, fn. 2 (Bailie).) He has either been released from Porterville or he has been recommitted on new facts. As a result, the facts of the underlying case are, for the most part, irrelevant.
Nevertheless, "courts have decided such appeals where the issues are recurring and present important questions of law. [Citation.]" (Bailie, supra, 144 Cal.App.4th at p. 844, fn. 2.) This case presents an important question of law that may evade appellate review. That question alone therefore circumscribes the scope of our review. Whereas at trial the focus was whether O.P.'s mental retardation was a substantial factor in causing him serious difficulty controlling his dangerous behavior, the sole focus on appeal is whether he was deprived of due process by the special instruction allowing the jury to find him dangerous based only on the fact he was declared incompetent and had been charged with, not tried for or convicted of, a violent felony.
There was an abundance of evidence that O.P. had multiple disorders unrelated to his mild mental retardation. Indeed, the court-appointed psychologist did not diagnose him with mild mental retardation until 2010. But no one disputes he had a history of violent outbursts. One doctor opined O.P. suffered from posttraumatic stress syndrome resulting from the violence he observed and was subjected to by his parents, who separated and got back together multiple times. There were numerous reports to child protective services, many restraining orders, and police reports suggesting a turbulent and dysfunctional family. O.P. repeatedly expressed fear of his father. Two psychologists and a physician testified that O.P. suffered from depression, intermittent explosive disorder, seizure disorder, attention deficit hyperactivity disorder, and oppositional defiant disorder.
But the facts underlying the original commitment, as well as an evaluation of harmlessness, are moot. We will not recite or evaluate the additional evidence that O.P. was a danger to himself or others because the challenged instruction allowed the jurors to ignore that evidence in determining O.P. was dangerous, and indeed, the prosecutor encouraged them to do so. Nor will we consider evidence, as the Attorney General urges, to support a finding that the instruction was harmless. As the court held in People v. Sweeney (2009) 175 Cal.App.4th 210, 225 (Sweeney), "We decline to determine whether the trial court's error was harmless, because the order of commitment is moot. We have chosen to address the issues raised by Sweeney because they involve matters of public interest that are likely to reoccur yet normally evade review; however, there would be little value in a harmless error analysis." Thus we proceed to the narrow, but important, question before us.
The prosecution had the burden to prove beyond a reasonable doubt that O.P. was mentally retarded, a danger to himself or others, and that his mental retardation was a substantial factor in causing him serious difficulty controlling his dangerous behavior. (Bailie, supra, 144 Cal.App.4th 841.) The special instruction explained the criteria for assessing the second element -- whether O.P. was dangerous. (CT 250)
Special Instruction No. 5 is the target of O.P.'s constitutional challenge. Special Instruction No. 5 states:
"The Respondent is a danger to himself or others when:
"1. There has been a finding of incompetence to stand trial on ...