People v. McCray

316 Cal. Rptr. 3d 566

The PEOPLE, Plaintiff and Respondent,

v.James MCCRAY, Defendant and Appellant.

A166084

Court of Appeal,

First District, Division 4.

Filed December 22, 2023

As Modified January 22, 2024

Trial Court: Superior Court of California, County of Alameda, Trial Judge: Hon. Andrew A. Steckler (Alameda County Super. Ct. No. RM08389840)

Keith Fox, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Eric J. Kohm, Deputy Attorney General, for Plaintiff and Respondent.

STREETER, Acting P. J.

James McCray has been committed to the State Department of State Hospitals (DSH) for a series of one-year terms more or less continuously since 2005 under the statutory scheme governing violent offenders with mental health disorders (OMHD’s). (See Pen. Code, § 2960 et seq.).¹ He now appeals from a 2022 order recommitting him for another one-year term.

McCray argues we should reverse the recommitment order for three reasons: (1) contrary to the court’s findings, there is insufficient evidence he represents a substantial danger of physical harm to others by reason of a severe mental health disor- der; (2) the court erred in finding he voluntarily absented himself from his recommitment trial; and (3) prior to trial, the trial court failed to obtain from him a knowing and intelligent waiver of his right to a jury. The People argue that this appeal is moot, but on the merits disagree on each point.

While we agree that McCray’s appeal must be dismissed as moot, under the exception to the mootness doctrine for important issues that recur on appeal yet evade review, we nonetheless address the trial court’s failure to engage in a robust enough oral colloquy with McCray to establish that he knowingly and intelligently waived his right to a jury trial.

I. BACKGROUND

McCray, 73 years old at the time of his 2022 recommitment trial, suffers from schizophrenia. He was first hospitalized for this condition in the 1970s, and had a long history of auditory hallucinations; delusional beliefs; paranoia that others were trying to hurt or threaten him; tangential and disorganized speech and thinking; flattened affect, which manifested itself as a mismatch between his facial expression and what he was feeling; and lack of motivation, which included disinterest in attending treatment groups or meetings with his treatment team.

McCray was convicted of assault with a deadly weapon in 2004, and sentenced to prison. In 2005, he was found to be an OMHD, and as a condition of parole he was committed for treatment to DSH’s predecessor agency, the State of California Department of Mental Health.² After being released on five different occasions to a conditional release program (CONREP) for outpatient treatment, he was rehospitalized each time for noncompliance with treatment. The throughline leading to all these rehospitalizations was failure to take medications. McCray was last rehospitalized in November 2019.

On June 29, 2022, the Alameda County District Attorney’s Office moved to consolidate three pending petitions to extend McCray’s OMHD commitment for an additional year. The three petitions covered extensions for 2020 to 2021, 2021 to 2022, and 2022 to 2023, respectively. The court granted the motion to consolidate.

McCray waived his right to a jury trial, and the trial court found the waiver to be knowing, intelligent, and voluntary. The court then conducted a bench trial, which occurred over several days in July, August, and September of 2022. At the August session of trial, the court found that McCray had voluntarily absented himself from the proceedings.

In light of our disposition of this appeal, we need not describe in great detail the evidence presented at McCray’s 2022 trial but will instead provide the following general summary.

There was evidence of only one incident involving possible violence by McCray. A CONREP clinical social worker testified that, in October 2019, he went to McCray’s room to take him to a medical appointment. He entered the room and spoke to McCray, who was located between the social worker and the door of the room. The social worker described the ensuing interaction as follows:

"Mr. McCray said, I’m not going anywhere with you. I don’t have a mental illness. There’s nothing wrong with me. And he has a cane. He uses the cane, and he brandished the cane and stood in front of the door, and said, I’m not going anywhere with you, and then started to walk towards me with the cane. [¶] I … told him that if you don’t want to go, … I can’t make you go, but I do need to you move away from the door so I could leave. [¶] And after a short period of time he moved and let me walk out of the room." When the social worker was asked about his perceptions of McCray’s conduct during this incident, he said he took it as "a threat to [do] physical harm with the cane."

The social worker also testified to McCray’s general pattern of uncooperativeness with treatment, which included "[r]efusing to use transportation. We would have transportation set up for him to come to our program, ParaTransport transportation. He would refuse to get on the vehicle on many occasion[s]." He also "refus[ed] to participate in the group therapy sessions that we schedule and we have for him, … continu[ed] [to] insist[ ] that he was not mentally ill and did not need to be in the program, and on several occasion[s] h[e] refus[ed] to take medication, … [and] refus[ed] to get on the van to come in to get his shot."

A state hospital psychiatrist who had worked with McCray and was designated as an expert testified that McCray suffered from schizophrenia and resulting symptoms, such as hallucinations and disorganized behaviors and speech; that these symptoms were not in remission; that McCray had very poor insight into his mental illness and was unaware of his chronic symptoms; and that McCray did not meaningfully participate or engage in his treatment.

A state hospital clinical psychologist testified to conducting an evaluation of McCray in order to assess his risk of dangerousness. She pointed to McCray’s "history of violent behavior"; opined that this behavior was of "high relevance" to his risk for future violence; and further opined that he had a history of problems with relationships and antisocial behavior that were of "moderate relevance" to his risk for future violence.

A state hospital forensic evaluation report prepared by a senior forensic psychologist in October 2021 concluded that McCray represented a substantial danger of physical harm to others by reason of a severe mental disorder that was not in remission.

The trial court found it was proven true beyond a reasonable doubt that McCray had a severe mental disorder; that the disorder was not in remission and could not be kept in remission without treatment; and that as a result of the disorder, McCray represented a substantial danger of physical harm to others under Penal Code section 2970. The court ordered him recommitted for a period of one year, ending on April 29, 2023.

McCray filed a timely notice of appeal.³

II. DISCUSSION

A. McCray’s Appeal is Moot

The People argue McCray’s appeal is moot because the order from which he has appealed recommitted him for a term that expired in April 2023, and prior to the expiration of this recommitment order, the District Attorney filed a new recommitment petition. The record further indicates that McCray has since been recommitted for one more year.

[1] The mootness problem presented here "frequently arises in this area of law given the short duration of conservatorships." (Eric B., supra, 12 Cal.5th at p. 1094, fn. 2, 293 Cal.Rptr.3d 93, 508 P.3d 1099.) The governing principles of justiciability are familiar ones. In general, it is a court’s duty to decide " ‘ "actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." ’ " (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541, 63 Cal.Rptr. 21, 432 P.2d 717.)

[2, 3] The application of these principles here is straightforward. When, during the pendency of an OMHD appeal, an event occurs such that the appellate court cannot grant any effectual relief, the appeal becomes moot and should ordinarily be dismissed. (See People v. Alsafar (2017) 8 Cal.App.5th 880, 882–883, 214 Cal. Rptr.3d 186 (Alsafar); see also Conservatorship of Joseph W. (2011) 199 Cal. App.4th 953, 960–961, 131 Cal.Rptr.3d 896 (Joseph W.) We conclude that Alsafar controls, and that McCray’s appeal is moot because of his subsequent recommitment in 2023.

[4, 5] But there is an exception to the mootness doctrine for issues of "continuing public importance" that are deemed "capable of repetition, yet evad[e] review." (Alsafar, supra, 8 Cal.App.5th at p. 883, 214 Cal.Rptr.3d 186.) For the evading review exception to apply, there must be more at stake than simple error-correction in an individual case. The exception implicates the fundamental role of an appellate court as a custodian of the law, which is why courts often say it applies to issues that touch upon the "public interest." (People v. Cheek (2001) 25 Cal.4th 894, 897–898, 108 Cal.Rptr.2d 181, 24 P.3d 1204.)

We may exercise our discretion to address issues of this nature notwithstanding a dismissal for mootness. The capable of repetition exception to mootness has been invoked several times in OMHD recommitment cases, most recently by the Supreme Court in Eric B., but also by a number of Court of Appeal panels over the last 25 years. (See, e.g., Alsafar, supra., 8 Cal. App.5th at pp. 886–887, 214 Cal.Rptr.3d 186; People v. Dunley (2016) 247 Cal. App.4th 1438,...