Filed 12/11/19 P. v. Lind CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

EDWARD PATRICK LIND,

Defendant and Appellant.

A156162

(San Mateo County

Super. Ct. No. SC038033A)

In 2000, defendant Edward Patrick Lind was involuntarily committed to a state mental hospital as a mentally disordered offender (MDO), and his commitment has been extended many times under Penal Code section 2970. In this appeal, Lind challenges the extension of his commitment to October 31, 2019, as a result of a November 2018 jury trial. He claims that reversal is required because his trial counsel rendered ineffective assistance during that trial, primarily by not objecting under People v. Sanchez (2016) 63 Cal.4th 665 to testimony offered by the People’s expert.

While this appeal was pending, the trial court ordered yet another extension of Lind’s commitment as an MDO, and Lind did not appeal from that order. In light of this subsequent nonreviewable order, we decline to address Lind’s substantive claims regarding the November 2018 trial and dismiss the appeal as moot.

I.
BACKGROUND

Lind was originally sentenced to state prison in 1996. The events leading up to the sentence are immaterial to this appeal, but the record indicates that he was convicted of assault with a deadly weapon. After serving some time in prison, Lind was placed on parole, but he violated his parole conditions and was reincarcerated in March 2000. At that time, he was found to be an MDO and sent to Atascadero State Hospital, and his commitment has been repeatedly extended, either through adjudication or by stipulation.

This appeal arises from a petition the People filed in June 2018 to extend Lind’s commitment for an additional year. Lind was represented by attorney Randy Hey. A one-day jury trial was held in November 2018, at which the only witnesses were the People’s expert in forensic psychology and Lind, who testified in his own defense. The jury returned a verdict finding that Lind is a person suffering from a severe mental disorder not in remission who presents a substantial danger of physical harm to others within the meaning of section 2970, and the trial court entered an order (November 2018 order) recommitting Lind to the Department of State Hospitals until October 31, 2019.

While this appeal was pending, Lind’s commitment was again extended, this time to October 31, 2020. Lind did not appeal from that order, which was entered on July 23, 2019 (July 2019 order). We requested supplemental briefing from the parties on whether the July 2019 order renders this appeal moot. The Attorney General claims it does, but Lind claims it does not. The Attorney General has the better argument.

II.
DISCUSSION

The Mentally Disordered Offenders Act (§§ 2960 et seq.) authorizes involuntary civil commitment as a condition of parole, if certain conditions are met, for prisoners who are found to have a “severe mental disorder.” (§ 2962, subds. (a)–(f).) The commitment is for a term of one year, but the district attorney may file a petition annually to seek to extend the commitment for another year. (§ 2972, subds. (c), (e).)

“An appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief.” (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.) In their original briefing, the parties disputed whether Lind’s appeal is moot because the commitment ordered as a result of the November 2018 order ended on October 31, 2019, a date that has now passed. We are not convinced that Lind’s appeal is moot solely because the November 2018 order is no longer in effect. We agree with Lind that—absent some other reason to conclude that the appeal is moot—there is at least an arguable possibility that a decision on the validity of the November 2018 order could affect the trial court’s jurisdiction over subsequent commitment extensions. (See People v. Fernandez (1999) 70 Cal.App.4th 117, 134–135.)

We need not resolve this dispute, however, because there is a separate reason that the appeal is moot: Lind’s commitment was again extended by virtue of the July 2019 order, which was not appealed and is now final. When a party fails to file a notice of appeal from a judgment, the Court of Appeal “never gain[s] jurisdiction to address the . . . judgment.” (Adoption of Alexander S. (1988) 44 Cal.3d 857, 864; see Adoption of Kelsey S. (1992) 1 Cal.4th 816, 852; In re Gary R. (1976) 56 Cal.App.3d 850, 853.) Therefore, we cannot provide Lind with effective relief from his commitment in this appeal.

We also decline to exercise our discretion to consider the appeal under the exception to the mootness doctrine that allows reviewing courts to consider an otherwise moot appeal when it “presents important issues that are ‘capable of repetition, yet evading review.’ ” (Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 122; see People v. Cheek (2001) 25 Cal.4th 894, 897–898 [exercising such discretion in appeal under the Sexually Violent Predators Act].) While appellate courts should be open to reviewing rulings that present important issues that might otherwise remain unresolved, the November 2018 order is not such a ruling. Lind’s arguments that Hey was ineffective during the November 2018 trial are primarily fact-based, and they do not present issues of broad public interest. We see little reason to assume that Hey or any other attorney representing Lind at a future trial to extend his commitment will face similar expert evidentiary issues or respond to them in the same way.

Although Lind argues that he “may forever be denied a completed review on appeal” if we do not exercise our discretion to reach the merits of his claims, our holding that earlier commitment orders may be rendered moot by subsequent commitment orders that are unchallenged and final has no effect on MDO’s who continue to challenge subsequent commitment orders. Nothing in this decision precludes Lind from appealing any future commitment orders entered against him, including any that are entered while an appeal from a previous order is still pending.

III.
DISPOSITION

The appeal is dismissed.

 

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Banke, J.

People v. Lind A156162