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People v. Alsafar

California Court of Appeals, Fourth District, Third Division

February 16, 2017

THE PEOPLE, Plaintiff and Respondent,
FARIS NADER ALSAFAR, Defendant and Appellant.

         Appeal 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.

          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.


          O'LEARY, P. J.

         The Mentally Disordered Offenders Act (Pen. Code, § 2960 et seq.)[1] 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.

         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.


         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 ...

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