California Court of Appeals, Fourth District, Third Division
from an order of the Superior Court of Orange County, No.
09NF2515 David A. Hoffer, Judge. Dismissed as moot.
Barbara A. Smith, under appointment by the Court of Appeal,
for Defendant and Appellant.
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.
O'LEARY, P. J.
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).)
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.
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.
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.)
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.
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.
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.
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
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