In re C.B.













Filed 12/11/12 In
re C.B. CA6











>NOT TO BE PUBLISHED IN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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SIXTH APPELLATE DISTRICT




>

In re C.B., a Person Coming Under the Juvenile Court Law.	H036118 (Santa Clara County Super. Ct. No. MH034663)
THE PEOPLE, Plaintiff and Respondent, v. C.B., Defendant and Appellant.

Acting
under the authority of Welfare and Institutions Code sections 6500 et sequitur,
the trial court granted an order extending the commitment of appellant C.B. to
the Department of Developmental Services (Department) on a finding that she
suffered from mental retardation and was a danger to herself and others. On appeal she contends that the trial court
committed reversible error by relying on a clear-and-convincing-evidence
standard of proof when the correct standard is proof beyond a reasonable doubt,
and by failing to find that appellant’s dangerousness to self or others was a
product of mental retardation.
Respondent concedes that the court committed reversible error but
contends that the appeal is moot because the one-year commitment has expired. We conclude that because appellant was
previously committed on the same grounds under an order which has now become
final, a reversal of the order now before us cannot relieve appellant of any
stigma that might otherwise warrant reversal.
We will therefore dismiss the appeal as moot.

Background

On
April 8, 2009, the trial court granted the district attorney’s petition for an
order of commitment on the ground that appellant was mentally retarded and
dangerous to herself or others. (>People v. Barrett (2012) 54 Cal.4th
1081, 1090-1092 (Barrett I).) That order was ultimately affirmed by this
court and, on petition for review, by the Supreme Court. (Id.
at pp. 1093, 1111; see id. at p. 1114
[Werdegar, J., concurring in result], id.
at p. 1116 [Liu, J., same].)

Meanwhile,
on February 25, 2010, the district attorney sought to extend appellant’s
commitment for another year by filing a “Petition for Recommitment” under
Welfare and Institutions Code section 6502 alleging that appellant was
“currently residing at California Psychiatric Transitions [(CPT)] on an
involuntary commitment” and that she was “a person mentally retarded and
. . . a danger to herself and others.”

It
is this petition that produced the order now before us. The trial court conducted a hearing on August 5, 2010. In opening remarks, the
deputy district attorney asserted that the governing standard of proof was
clear and convincing evidence. She then
presented evidence consisting of the testimony of a staff psychiatrist and a
written report from the regional center service coordinator. After appellant herself testified briefly,
the court heard closing arguments from counsel.
The deputy district attorney asserted that she had proven the statutory
grounds for commitment “beyond a reasonable doubt.” When she concluded, the court remarked, “I’m
not going to hold you to it, but I’m assuming that rather than beyond a
reasonable doubt, you have done that [i.e., proven your case] by clear and
convincing evidence.” Counsel replied,
“Thank you.”

After
hearing argument from counsel for appellant and rebuttal by the deputy district
attorney, the court sustained the petition.
In doing so it said, “I think at the present time, I think by clear and
convincing evidence, that evidence has demonstrated that she does have mild
retardation as one of her axis diagnos[e]s and that she is a danger to herself
and others. . . .
[¶] And it appears, again, by
clear and convincing evidence she is presently in the least restrictive
placement. . . .” The
minute order memorializing the hearing states, “Court states that the evidence
demonstrated [appellant] has mild retardation [and] is a danger to herself
[and] others. She should remain in
placement. Order is signed.” The signed order states, as pertinent, that
appellant “was found to be mentally retarded and a danger to herself and
others” and that she was committed to the Department “for a period of one year
commencing on August 5, 2010.”

This
timely appeal followed.

Discussion

A
person who is the subject of a proceeding for involuntary commitment on grounds
of mental retardation and danger to self or others is entitled to have the case
for commitment established by proof beyond a reasonable doubt. (Money
v. Krall (1982) 128 Cal.App.3d 378, 382; see In re Hop (1981) 29 Cal.3d 82, 93.)
As respondent concedes, the court below plainly erred by expressly
adopting the lower standard of proof by clear and convincing evidence. The only point of controversy is whether we
should reverse the order under review or dismiss the appeal as moot.

By
the time respondent’s brief was filed in this court, the recommitment order of
August 5, 2010, had expired by its terms.
Further, respondent asserts in a separate motion to dismiss that as of
April 2012 appellant “has been released and is no longer subject to any
commitment pursuant to Welfare and Institutions Code section 6500 et seq.” In a supporting declaration, counsel for
respondent states that the district attorney’s office has told him “that after
the August 5, 2011 expiration of appellant’s one-year commitment
. . . , the district attorney sought no further commitment of
appellant.” Appellant neither contests
nor objects to this representation, which we therefore accept as true.

Ordinarily
a court will not decide a case unless it involves “a present, concrete, and
genuine dispute as to which the court can grant effective relief.” (In re
I.A. (2011) 201 Cal.App.4th 1484, 1489.)
An order imposing an involuntary commitment ordinarily becomes subject
to dismissal as moot when the order ceases by its terms to restrain the
subject’s liberty. (See, e.g., >People v. Hurtado (2002) 28 Cal.4th
1179, 1186 [case “became moot when defendant’s 1996 commitment expired”; court
nonetheless addressed recurring issues raised on merits].) However, the “stigma” inflicted by such an
order may require consideration on the merits even though the order has become
technically moot. Appellant cites >In re Michael D. (1977) 70 Cal.App.3d
522, where a parentless minor sought review of an order appointing a guardian
for the purpose of committing the minor to a state hospital. While the matter was pending, the minor was
discharged from the hospital and placed in a foster home. (Id.
at p. 524, fn. 1.) The court “decline[d]
to consider the matter moot” in light of “the stigma involved in placement in a
mental institution.” (>Id. at p. 524, fn. 1; see also >Conservatorship of Johnson (1991) 235
Cal.App.3d 693, 696, fn. 1.)

In
Katz v. Superior Court (1977) 73
Cal.App.3d 952, five adults petitioned to overturn orders appointing their
parents as conservators, apparently for the purpose of separating the
petitioners from a religious community or practice to which they had chosen to
adhere. While the matter was pending the
appellate court stayed the orders under review, thereby “enabl[ing] each
temporary conservatee to associate with whomsoever he or she might
choose.” (Id. at p. 959.) In
nonetheless addressing the soundness of the orders, the court relied primarily
on the rule that technical mootness will not prevent review on the merits when
a case “ ‘poses an issue of broad public interest that is likely to
recur.’ ” (Id. at p. 961, quoting In re
William M. (1970) 3 Cal.3d 16, 23; see People
v. Hurtado, supra, 28 Cal.4th at
p. 1186.) However, the court could also
be understood to invoke the “stigma” exception, if only indirectly, by citing> People v. Feagley (1975) 14 Cal.3d
338. In Feagley the court reviewed a commitment as a mentally disordered
sex offender despite the subject’s release from the commitment. In declining to deem the order moot, the
court referred to an earlier decision in which it had held that “even a
temporary commitment as an apparent mentally disordered sex offender may be
challenged after discharge, reasoning in part that ‘defendant is entitled to
the opportunity to clear his name of the adjudication that he is a probable
mentally disordered sex offender.’ ”
(Id. at p. 345, quoting >People v. Succop (1967) 67 Cal.2d 785,
790.)

We
may assume for present purposes that these decisions would be equally
applicable to a commitment based upon mental retardation—or, more modernly,
developmental disability (see Barrett I,
supra, 54 Cal. 4th at p. 1088, fn.
2). They nonetheless appear inapplicable
here, because the order before us is merely redundant of an earlier order to
the same effect on the same grounds. The
Supreme Court has now affirmed that order (Barrett
I, supra), denied rehearing (see
2012 Cal. LEXIS 8950), and issued its remittitur (see

dockets.cfm?dist=0&doc_id=1935552>
(as of Oct. 10, 2012)). The order is
thus immune from further direct judicial review. Since it appears to possess precisely the
same stigmatizing effect as the subsequent order, a disposition setting aside
the latter would have no apparent tendency to relieve appellant of any
stigmatizing effect otherwise flowing from these proceedings. It follows that the case falls outside the
“stigma” exception to the rule against deciding moot causes.




>

Disposition

The
appeal is dismissed.









______________________________________

RUSHING, P.J.











WE CONCUR:









____________________________________

ELIA, J.





















___________________________________

WALSH, J.href="#_ftn1"
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