Filed 10/29/13 P. v. Palmer CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

WILLIAM DUANE PALMER,

 Defendant and Appellant.

 G047095

 (Super. Ct. No. 06NF4090)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Michael 

Brenner, Judge. (Retired Judge of the Orange Sup. Ct. assigned by the Chief Justice 

pursuant to art. VI, § 6 of the Cal. Const.) Dismissed.

Barbara A. Smith, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, James D. Dutton and 

Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
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* * *

Defendant and appellant William Duane Palmer appeals from an order 

recommitting him to Atascadero State Hospital (Atascadero) under the Mentally 

Disordered Offender Act (Pen. Code, § 2960 et seq.; MDO Act) and authorizing 

Atascadero to administer antipsychotic medication to him involuntarily.1 Palmer does 

not challenge the order recommitting him to Atascadero, but challenges the sufficiency of 

the evidence to support the involuntary medication order. Palmer, however, concedes the 

order expired while this appeal was pending and therefore we dismiss the appeal as moot.

I

FACTUAL AND PROCEDURAL BACKGROUND

Palmer has a long history of mental illness and his current diagnosis is 

schizoaffective disorder, polysubstance dependence, and antisocial personality disorder. 

His primary psychiatric symptoms include paranoid delusions, auditory hallucinations, 

mania, mood lability, agitation, and assaultiveness. Palmer‟s criminal history began at 

age 13 when the juvenile court sustained a petition for burglary. As an adult, he has a 

history of gun theft, receiving stolen property, possession of burglary tools, using 

controlled substances, petty theft, trespassing, terrorist threats, burglary, firearm 

possession, and indecent exposure and masturbation while incarcerated. 

In 2006, Palmer angrily confronted a small group of teenagers, spit at the 

group, and threatened to kill them with both a baseball bat and a pellet gun. For his 

actions, the prosecutor charged Palmer with four felony counts of making criminal threats 

and one misdemeanor count of brandishing an imitation firearm. Palmer pleaded guilty 

to two of the felony counts and the misdemeanor count, and the remaining two felony 

counts were dismissed. The trial court sentenced him to three years of formal probation 

 

1 All statutory references are to the Penal Code unless otherwise stated.
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and the approximately 250 days he already had served in county jail. Palmer‟s probation 

conditions included receiving therapy through a Department of Mental Health program. 

In December 2007, Palmer violated his probation by failing to attend his 

therapy sessions and take his medications. The trial court ordered him to serve 90 days in 

jail and reinstated his probation. In March 2008, Palmer again violated his probation by 

failing to attend his therapy sessions, take his medications, and report to his probation 

officer. As a result, the trial court terminated Palmer‟s probation and sentenced him to 

16 months in state prison for his earlier offenses. While in prison, Palmer often refused 

to take his medications and his behavior was extremely agitated, delusional, and hostile. 

On August 1, 2011, Palmer was certified as a mentally disordered offender 

(MDO) and admitted to Atascadero under the MDO Act. While at Atascadero, Palmer 

remained uncooperative in taking his medication and participating in treatment. He also 

grew increasingly hostile and threatening toward staff, would yell at voices he heard, and 

became emaciated after starving himself and losing 40 pounds. On one occasion, Palmer 

came out of his room at Atascadero, began yelling at a patient walking in the hallway, 

and struck that patient in the mouth. Palmer stated he would punch the patient again if 

given the chance. 

In November 2011, the prosecutor filed a petition to extend Palmer‟s MDO 

commitment at Atascadero for one year. While that petition was pending, the prosecutor 

also moved for an order to involuntarily administer antipsychotic medications for Palmer. 

In May 2012, a jury found Palmer continued to qualify as an MDO. Based on the jury‟s 

findings, the trial court extended Palmer‟s commitment to May 31, 2013. The trial court 

also granted the prosecutor‟s request for an order permitting involuntary medication, 

explaining the order was necessary because Palmer was dangerous under Welfare and 

Institutions Code section 5300. 
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Palmer timely appealed the trial court‟s order. On appeal, he does not 

challenge the order extending his commitment, but argues the involuntary medication 

order was not supported by substantial evidence.

II

DISCUSSION

A. The MDO Act and Involuntary Medication

“The [MDO Act], enacted in 1985, requires that offenders who have been 

convicted of violent crimes related to their mental disorders, and who continue to pose a 

danger to society, receive mental health treatment during and after the termination of 

their parole until their mental disorder can be kept in remission. [Citation.] Although the 

nature of an offender‟s past criminal conduct is one of the criteria for treatment as [an 

MDO], the MDO Act itself is not punitive or penal in nature. [Citation.] Rather, the 

purpose of the scheme is to provide MDO‟s with treatment while at the same time 

protecting the general public from the danger to society posed by an offender with a 

mental disorder. [Citation.]” (In re Qawi (2004) 32 Cal.4th 1, 9.)

“Treatment [under the MDO Act] is inpatient unless the State Department 

of Mental Health agrees to treat the prisoner on an outpatient basis. [Citations.] If the 

prisoner‟s severe mental disorder can be put into and kept in remission, treatment must be 

discontinued. [Citations.] If not, the extension provisions of section 2970 come into 

play. [Citation.]” (People v. Superior Court (Salter) (2011) 192 Cal.App.4th 1352, 

1356-1357 (Salter).)

“Under section 2970, „if the prisoner‟s severe mental disorder is not in 

remission or cannot be kept in remission without treatment, the medical director of the 

state hospital which is treating the parolee . . . shall submit to the district attorney of the 

county in which the parolee is receiving outpatient treatment, or for those in prison or in a 

state mental hospital, the district attorney of the county of commitment, his or her written 
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evaluation on remission.‟ The evaluation must be submitted to the district attorney 

„[n]ot later than 180 days prior to the termination of parole, or release from prison if 

the prisoner refused to agree to treatment as a condition of parole as required by 

Section 2962.‟ [Citation.] After receipt of the evaluation, „[t]he district attorney may 

then file a petition with the superior court for continued involuntary treatment for one 

year.‟ [Citation.]” (Salter, supra, 192 Cal.App.4th at p. 1357.)

“Section 2972 requires the court to conduct a hearing on the petition for 

continued treatment filed pursuant to section 2970. Recommitment must be ordered if 

the court or a jury finds „(1) that the [prisoner] has a severe mental disorder; (2) that the 

disorder is not in remission or cannot be kept in remission without treatment; and (3) that 

the [prisoner] represents a substantial danger of physical harm to others by reason of the 

disorder. [Citation.]‟ [Citation.] . . . The commitment shall be for a period of one year 

from the date of termination of parole or a previous commitment or the scheduled date of 

release from prison as specified in Section 2970.‟ [Citation.]” (Salter, supra, 

192 Cal.App.4th at p. 1357.)

Although competent adults have a constitutionally protected liberty interest 

in their right to refuse necessary medical treatment, including antipsychotic drugs (People 

v. Fisher (2009) 172 Cal.App.4th 1006, 1012-1013 (Fisher); see also In re Qawi, supra, 

32 Cal.4th at p. 17), an MDO‟s right to refuse treatment “may be restricted to 

accommodate the state‟s interest in protecting the public and providing mental health 

treatment for offenders who are dangerous as a result of severe mental illness. 

[Citations.]” (Fisher, at p. 1013.) Indeed, “the MDO‟s right to refuse antipsychotic 

drugs is qualified and may be overcome in nonemergency situations by a judicial 

determination either that the person is incompetent or that he or she is dangerous within 

the meaning of [Welfare and Institutions Code] section 5300: „[A]n MDO can be 

compelled to be treated with antipsychotic medication under the following nonemergency 

circumstances: (1) he is determined by a court to be incompetent to refuse medical 
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treatment; (2) the MDO is determined by a court to be a danger to others within the 

meaning of Welfare and Institutions Code section 5300.‟ (In re Qawi, supra, 32 Cal.4th 

at p. 27, italics added.)” (Fisher, at p. 1013.) We review an order authorizing an MDO 

to receive involuntary antipsychotic medication for substantial evidence. (Id. at p. 1016.)

B. Palmer’s Appeal Is Moot Because the Challenged Order Expired

Palmer concedes the order recommitting him to Atascadero and “the 

concomitant medication order” expired on May 31, 2013, but he nonetheless argues his 

appeal challenging the involuntary medication order is not moot. Although the Attorney 

General failed to address Palmer‟s argument against mootness, we conclude the appeal is 

moot and therefore dismiss it.

“„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.”‟ [Citation.]” (People v. Gregerson (2011) 202 Cal.App.4th 306, 321.) Here, we 

cannot provide Palmer any effective relief because the order he challenges already has 

expired by its own terms.

An appellate court retains discretion to decide a moot appeal if the issue 

raised presents an important matter of public interest that will continue to recur and evade 

review. (See, e.g., County of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1006; In re 

Jody R. (1990) 218 Cal.App.3d 1615, 1622.) In People v. Cheek (2001) 25 Cal.4th 894 

(Cheek), the defendant challenged an order following the annual review hearing afforded 

defendants committed under the Sexually Violent Predators Act (SVPA) (Welf. & Inst. 

Code, § 6600 et seq.). (Cheek, at p. 896.) Before addressing the merits, the Supreme 

Court recognized the defendant‟s two-year commitment under the SVPA expired during 
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the pendency of the appeal. (Id. at p. 897.) Nonetheless, the issue presented—whether a 

defendant has a right to call witnesses and cross-examine the state‟s witnesses at the 

annual review hearing—was one “likely to recur while evading appellate review” and 

involved a “matter of public interest.” (Id. at pp. 897-898.) The Supreme Court 

exercised its discretion to address the issue for the guidance of future proceedings before 

dismissing the case as moot. (Id. at p. 898; see also People v. Hurtado (2002) 28 Cal.4th 

1179, 1185-1186 [concluding appeal was moot but determining whether jury must find 

SVPA defendant will commit predatory acts because the issue arises in virtually every 

SVPA trial and appeal].)

In People v. Fernandez (1999) 70 Cal.App.4th 117 (Fernandez), an MDO 

defendant argued the trial court lacked jurisdiction to extend his commitment because 

certain procedural requirements had not been met. The appeal was moot because the 

recommitment order had expired, but the appellate court still reached the merits. The 

record showed the defendant‟s commitment period had been extended while the appeal 

was pending and the court found “our decision [might] still affect the lower court‟s right 

to continue jurisdiction under the original commitment as well as the recommitment.” 

(Id. at pp. 134-135; see also People v. Williams (1999) 77 Cal.App.4th 436, 441, fn. 2 

[although appeal from MDO recommitment order was “technically moot,” the appellate 

court addressed the merits because the issue of the trial court‟s jurisdiction was 

“important and of continuing interest”].)

Unlike the foregoing cases, Palmer‟s appeal does not involve an issue of 

public interest. Rather, Palmer solely challenges the sufficiency of the evidence to 

support his expired involuntary medication order, an issue that does not affect the court‟s

jurisdiction, as in Fernandez, and is not a novel question of unsettled law, as in Cheek. 

(See Fernandez, supra, 70 Cal.App.4th at pp. 134-135; Cheek, supra, 25 Cal.4th at 

pp. 897-898.) Similarly, whether the specific evidence the prosecutor offered constituted 

substantial evidence justifying the expired involuntary medication order is not likely to 
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recur. Any future application for an involuntary medication order against Palmer or any 

other MDO must be decided based on the specific evidence presented on that application.

The trial court issued the expired order based on its finding Palmer was 

dangerous within the meaning of Welfare and Institutions Code section 5300. (In re 

Qawi, supra, 32 Cal.4th at pp. 9-10, 27.) “Section 5300 requires a particularized showing 

that [(1)] the person is a demonstrated danger and [(2)] he or she was recently dangerous. 

[Citation.] In the case of an MDO, the commitment offense may establish demonstrated 

dangerousness and recent dangerousness consists of „violent or threatening acts specified 

in section 5300 within the year prior to the commitment or recommitment.‟ [Citation.]” 

(Fisher, supra, 172 Cal.App.4th at p. 1016; see also In re Qawi, at pp. 21, 27-28, fn. 7.) 

The acts specified in Welfare and Institutions Code section 5300 include attempting to 

inflict or inflicting “physical harm upon the person of another,” and making “serious 

threat[s] of substantial physical harm upon the person of another.” (§ 5300; In re Qawi, 

at pp. 27-28, fn. 7.)

Under these controlling standards, the criminal offenses that lead to 

Palmer‟s initial commitment (criminal threats and brandishing an imitation firearm at a 

group of teenagers) may be used on a future application to establish the demonstrated 

dangerousness element, but Palmer does not challenge the sufficiency of the evidence to 

support this element. As for the recent dangerousness element, the foregoing standards 

prevent the prosecutor from using the same evidence on any future application. The trial 

court issued the expired order on June 1, 2012, based on conduct that included Palmer 

punching another patient in February 2012, threatening to do it again if given the chance, 

and Palmer‟s numerous threats to physically harm hospital staff. The prosecution may 

not use evidence regarding these events to establish the recent dangerousness element on 

any future application because the events necessarily occurred more than one year before 

any future application. (Fisher, supra, 172 Cal.App.4th at p. 1016 [acts showing recent 

dangerousness must occur “„within the year prior to the commitment or 
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recommitment‟”].) Accordingly, whether the prosecution‟s evidence of these acts 

constituted substantial evidence of recent dangerousness is not likely to recur.

Indeed, Palmer fails to identify any specific issue regarding the expired 

order that is likely to recur or otherwise involves an important public interest. On the 

merits, Palmer concedes he punched a patient in February 2012, and does not dispute he 

threatened hospital staff on several occasions. (Fisher, supra, 172 Cal.App.4th at 

pp. 1016-1017 [substantial evidence of dangerousness existed because the evidence 

showed “that during his commitment appellant threatened physical violence, masturbated 

in front of female staff, and took papers from staff and threw them on the floor, becoming 

physically threatening”].) Instead, Palmer argues he has “rarely harmed anyone” and his 

erratic behavior “almost never translated into any actual harm to others.” According to 

Palmer, the foregoing events occurred despite a previous involuntary medication order 

and therefore he should be given the opportunity to demonstrate he can behave without 

an involuntary medication order. This argument misstates the controlling standards 

because the court must decide any future application based on the evidence presented on 

that application, not the evidence supporting any earlier order. In sum, Palmer presents 

no issue that justifies exercising our discretion to decide a moot appeal on the merits.

Palmer argues “[n]umerous courts have found that MDO appeals present 

issues of public interest which are not to be dismissed as moot, because the issues are 

„capable of repetition yet evading review.‟” The appellate courts did not reach those 

issues merely because the appeals were in MDO cases or because the orders at issue often 

expired before the court reviewed the merits. Rather, the courts addressed the merits 

because the specific issues presented important and recurring claims which affected the 

trial court‟s jurisdiction to hear the cases or the governing procedures for all MDO cases. 

As explained above, Palmer fails to raise an issue requiring us to hear his moot appeal.
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III

DISPOSITION

The appeal is dismissed as moot.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

BEDSWORTH, J.