People v. Parker CA5

Filed 3/23/21 P. v. Parker CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078198
Plaintiff and Respondent,
(Super. Ct. No. F17902615)
v.
DEWAYNE KEITH PARKER, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Wayne R.
Ellison, Judge. (Retired Judge of the Fresno Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.)
Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
This is an appeal following a finding that defendant Dewayne Keith Parker was
incompetent to stand trial and was ordered committed to a state hospital. Defendant
made a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) after he
was found incompetent but before a placement hearing was held and the order of
commitment issued. At the placement hearing, the trial court acknowledged the Marsden
motion but deferred hearing it until such time as defendant’s competency was restored.
Defendant claims this was error. Defendant maintains he should have been considered
for a mental health diversion program rather than placement at a state hospital, and the
maximum term of commitment noted in the placement order exceeded the two-year limit
as provided by the recent amendment to Penal Code section 1370, subdivision (c)(1).
(Stats. 2018, ch. 1008, § 2, pp. 4–15)1
Defendant was restored to competency in March 2019, the criminal proceedings
resumed, and upon defendant’s plea, judgment was entered in April 2019. We requested
briefing from the parties whether this appeal of the August 2018 incompetency finding
and the subsequent October 2018 commitment order is moot, and we conclude that it is.
For reasons we will explain, there is no adequate remedy that can be fashioned. We
cannot correct defendant’s placement in the state hospital nor affect his release from the
state hospital, which has already occurred. Moreover, to the extent errors were made
when the commitment order was issued that were not cured in future proceedings and
impacted the judgment of conviction, that judgment is not before us in this appeal.
FACTUAL SUMMARY
Defendant was charged with two felony counts of resisting an executive officer
(§ 69) and a misdemeanor violation of drawing or exhibiting a deadly weapon (§ 417,
subd. (a)(1)), all occurring on April 22, 2017. A prior conviction was alleged based on a
1 Unless otherwise indicated, all further statutory references are to the Penal Code.
2.
conviction for vehicular manslaughter, as well as a five-year prior prison term
enhancement.
In May 2017, the criminal proceedings were suspended due to doubt about
defendant’s mental competence to stand trial. Defendant was evaluated in August 2017,
and the evaluator opined defendant was incompetent to stand trial. In September 2017,
the trial court ruled defendant was incompetent to stand trial and ordered him committed
to the state hospital.
Defendant was ultimately transported to a state hospital in March 2018 and
treated. By May 2018, defendant was returned to competency and criminal proceedings
were reinstated; defendant was transferred back to the Fresno County Jail.
At a hearing on June 20, 2018, defendant’s counsel, having had opportunity to
speak with defendant at the jail, voiced doubts to the court about defendant’s
competency. Criminal proceedings were suspended again and a psychological report was
ordered. A mental health evaluation of defendant in July 2018 was inconclusive and the
competency determination was deferred. A second evaluation was ordered by the court
on August 1, 2018.
On August 16, 2018, Dr. Hughes conducted a mental health evaluation of
defendant and filed a report indicating defendant was incompetent to stand trial. On
August 31, 2018, after receiving Dr. Hughes’s report, the court found defendant
incompetent to stand trial, continued the suspension of the criminal proceedings, and set a
placement hearing for October 1, 2018. The court noted defendant refused to consent to
antipsychotic medication and authorized involuntary administration of medication.
On September 27, 2018, defendant filed a notice of appeal. On the form,
defendant noted he was appealing orders dated March 2, 2018, and November 22, 2018.
Also on the appeal form, defendant stated he was requesting “a … § 995/Letter of
modification [section] 1538.5” and that before a plea or conviction, he wished to argue
that he had a “granted [section] 995, that was not respected.”
3.
At the October 1, 2018, placement hearing, the court continued suspension of the
felony and misdemeanor cases pending against defendant and ordered defendant to a state
hospital for treatment. The order also noted defendant had consented to the
administration of antipsychotic medication as prescribed by a treating psychiatrist. At
that hearing, the court also noted defendant had filed a written Marsden motion, but
reserved ruling on that motion until defendant was restored to competency. Specifically,
the court indicated that “defendant, first of all, has filed a written Marsden motion with
the court. The court is not taking [the] motion in light of his current status of being
incompetent to stand trial and I’ll reserve that for the state hospital until he is restored to
competency.” (Italics added.)
It is not clear from the record on appeal what filing was deemed a Marsden motion
by the trial court. On September 25, 2018, a letter from defendant was received, but was
apparently returned to defendant unfiled. This letter appears in the supplemental clerk’s
transcript, but it does not reference a Marsden motion or hearing. The court issued a
written order on October 3, 2018, regarding the October 1, 2018, commitment hearing,
but the order does not mention a deferred Marsden motion.
Another letter from defendant contained in the clerk’s transcript is stamped
received by Fresno Superior Court on October 4, 2018; among other things, the letter has
“Marsden Motion” noted in the caption.2 The letter asks the court to issue an order that
allows defendant to attend court hearings and contains a list of numerous citations,
including one to People v. Solorzano (2005) 126 Cal.App.4th 1063 (Solorzano), a case
involving a Marsden motion.3
2 This letter is stamped “RECEIVED” on September 27, 2018, by the United States
District Court for the Eastern District of California, not Fresno Superior Court.
3 The envelope apparently containing this letter is postmarked October 2, 2018; thus, it
stands to reason this was not the letter the trial judge referred to at the October 1, 2018,
commitment hearing.
4.
On October 9, 2018, defendant filed another handwritten notice of appeal. An
October 16, 2018, minute order confirms, by handwritten note, that the trial court was
deferring a Marsden hearing until mental competency was restored. That order
referenced an attached letter/document, but that attachment does not appear with the
order, so it is unclear whether this was in response to defendant’s October 4, 2018, letter
request mentioning Marsden.
On appeal, defendant claims there were three errors related to the commitment
order. First, although noting a Marsden motion had been filed, the trial court erroneously
deferred hearing it until such time as defendant was restored to competency. Second, and
related to the asserted Marsden error, defendant’s trial counsel did not seek mental health
diversion under section 1001.36 as an alternative to placement at a state hospital. (See
§ 1370, subd. (a)(1)(B)(iv).)4 Third, the commitment order references the then-existing
three-year maximum term of commitment under former section 1370, subdivision (c)(1),
but during defendant’s commitment period amended section 1370 went into effect and
provides for a two-year maximum term of commitment—the parties agree the
amendment applies retroactively and the commitment order should be amended.
DISCUSSION
I. Judicial Notice
Fresno Superior Court’s online Case Management and Information System
indicates defendant was restored to competency in March 2019, he pled nolo contendere,
and was sentenced and released in April 2019. No appeal of that judgment was taken.
The parties submitted supplemental letter briefs at our request addressing the
4 Section 1370, subdivision (a)(1)(B)(iv) provides that “[i]f, at any time after the court
finds that the defendant is mentally incompetent and before the defendant is transported to a
facility pursuant to this section, the court is provided with any information that the defendant
may benefit from diversion pursuant to Chapter 2.8A (commencing with Section 1001.35) of
Title 6, the court may make a finding that the defendant is an appropriate candidate for
diversion.”
5.
appropriateness of taking judicial notice of the superior court’s online Case Management
and Information System. Neither party objects to the appropriateness of judicial notice in
this context, nor is there any argument the online public docket is incorrect or inaccurate.
As such, on our own motion, we take judicial notice of the court’s Case Management and
Information System records for Fresno Superior Court case No. F17902615, which
indicate defendant was found competent by the trial court on March 15, 2019, entered a
plea, and was sentenced and released from custody on April 15, 2019. (Evid. Code,
§§ 452, subds. (c), (d), 459, subd. (a); Truong v. Nguyen (2007) 156 Cal.App.4th 865,
872, fn. 3 [taking judicial notice of superior court’s docket entries to determine
disposition of action]; People v. Mendoza (2015) 241 Cal.App.4th 764, 773, fn. 1 [court’s
online docket are official records of the court].)5
II. This Appeal is Moot
An order adjudging a criminal defendant incompetent to stand trial under
section 1368 et. seq. is immediately appealable as a final judgment. (§ 1237; People v.
Fields (1965) 62 Cal.2d 538, 540) If, while that appeal is pending, the defendant is
returned to competency, the commitment order effectively expires and may moot the
appeal. (People v. Lindsey (1971) 20 Cal.App.3d 742, 744.)
“As a general rule, an appellate court only decides actual controversies. It is not
the function of the appellate court to render opinions ‘“‘“upon moot questions or abstract
propositions, or … declare principles or rules of law which cannot affect the matter in
issue in the case before it.”’”’ [Citation.] ‘[A] case becomes moot when a court ruling
can have no practical effect or cannot provide the parties with effective relief.’” (People
v. Rish (2008) 163 Cal.App.4th 1370, 1380.) Thus, “‘[a]n action that originally was
based on a justiciable controversy cannot be maintained on appeal if all the questions
5 This judicial notice does not encompass the truth of the disputed or disputable factual
contents of the court’s orders, only that the trial court issued these orders.
6.
have become moot by subsequent acts or events. A reversal in such a case would be
without practical effect, and the appeal will therefore be dismissed.’” (In re Dani R.
(2001) 89 Cal.App.4th 402, 404; accord, People v. DeLong (2002) 101 Cal.App.4th 482,
486.)
In light of defendant’s restoration to competency and subsequent plea and
conviction, we asked the parties to address whether the appeal was moot. The People
argue it is moot, but defendant disagrees. Defendant argues his return to competency did
not moot his appeal of the commitment order because the issues he identifies potentially
affected the rest of the proceedings and gave rise to potential collateral consequences that
weigh against mootness. Specifically, defendant maintains the failure to hold a Marsden
hearing may not have been cured after defendant was returned to competency. Therefore,
in addition to possible ineffective assistance of counsel with respect to his placement at a
state hospital, defendant notes this may also have affected his subsequent plea, sentencing
and judgment of conviction.
This is an appeal of a commitment order—it is not an appeal of the judgment of
conviction. As defendant has been returned to competency, the commitment order has
effectively expired. No order we might fashion can provide a remedy—even if we
determined deferring the Marsden hearing was prejudicial, we cannot retrospectively
unwind defendant’s placement at a state hospital or affect his release therefrom since that
has already occurred.
Beyond that, the subsequent judgment of conviction entered in April 2019 further
moots this court’s ability to provide any adequate remedy for consequences that may
have accrued later in the proceedings as a result of the asserted errors. Defendant points
out it is not clear if he was ever provided a hearing on his Marsden motion and contends
this court could still reverse his conviction and remand to provide that hearing and/or
allow defendant to withdraw his plea and obtain an eligibility hearing for mental health
diversion. We have been presented with no authority this court has jurisdiction to issue
7.
orders that would affect or reverse a judgment of conviction that is not before us. (See
People v. Mendez (1999) 19 Cal.4th 1084, 1094 [a timely notice of appeal, as a general
matter, is essential to appellate jurisdiction]; see also Polster, Inc. v. Swing (1985) 164
Cal.App.3d 427, 436 [“Our jurisdiction on appeal is limited in scope to the notice of
appeal and the judgment or order appealed from.”].) Moreover, defendant was not
precluded from requesting mental health diversion under section 1001.36 at any time
after his commitment. For all we know, defendant’s trial counsel may have requested the
court consider defendant for mental health diversion after defendant’s return to
competency. We cannot consider potential errors or omissions that may have occurred
after the order on appeal was issued based on a record of trial court proceedings we do
not have before us. Under these circumstances and in the context of this appeal, we have
no ability to fashion a remedy for any of the asserted errors or any other purported
collateral consequences.6
As a matter of public importance and one that will likely recur but evade review,
defendant argues we should address the merits of whether the amended two-year
maximum term of commitment under section 1370 applies retroactively.7 (See Liberty
Mut. Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715–716 [“If an action involves a matter of
6 Defendant notes collateral consequences might include the miscalculation of custody
credits following defendant’s restoration to competency, which could also lead to miscalculation
of the fines and fees and the imposition of parole. Defendant does not contend these errors
actually occurred, only that they might have occurred. Moreover, it is not clear how these types
of issues would be collateral of the trial court’s failure to hear a Marsden motion.
7 Section 1370, subdivision (c)(1), was amended effective January 1, 2019. (Stats. 2018,
ch. 1008, § 2, p. 14.) It provides that “[a]t the end of two years from the date of commitment or
a period of commitment equal to the maximum term of imprisonment provided by law …
whichever is shorter, but no later than 90 days prior to the expiration of the defendant’s term of
commitment, a defendant who has not recovered mental competence shall be returned to the
committing court.…” The parties both contend amended section 1370, subdivision (c)(1), which
previously provided for a maximum commitment of three years on a felony charge, applies
retroactively to defendant’s October 2018 commitment, and the commitment order should be
amended to reflect a two-year maximum commitment period.
8.
continuing public interest and the issue is likely to recur, a court may exercise an inherent
discretion to resolve that issue, even though an event occurring during its pendency
would normally render the matter moot.”].) We decline to do so. This issue will not
necessarily evade review in other cases and it will not recur here. Further, there is no
dispute between the parties to resolve—they agree the amendment to section 1370,
subdivision (c)(1), applies retroactively.
DISPOSITION
This appeal is dismissed as moot.
MEEHAN, J.
WE CONCUR:
FRANSON, Acting P.J.
DeSANTOS, J.
9.