Filed 11/18/13 P. v. Tabayoyon CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H038743
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS120848)
v.
DON TALERO TABAYOYON,
Defendant and Appellant.
Defendant Don Talero Tabayoyon filed this appeal from an order subjecting him
to involuntary medication after the trial court found him incompetent to stand trial on
charges of issuing criminal threats. He contends the order is defective in several respects.
However, while the appeal was pending he underwent treatment and was restored to
competence, whereupon the court placed him on probation based upon a preexisting plea.
Respondent contends, among other things, that these developments render the appeal
moot. We will sustain this contention and dismiss the appeal.
BACKGROUND
A. Underlying Facts
According to the probation report, police went to a home in Marina on
May 6, 2012, when a woman called saying that a male neighbor was yelling at her and at
a teenager, whom he accused of trying to run him off the road, and whom he had
threatened to kill. When police arrived, they spoke to defendant, who apparently lived
with his mother. He admitted having a confrontation with his neighbor but said it arose
when an unknown male came onto his mother’s property and dug up something from the
dirt. He denied threatening anyone’s life. He made several spontaneous comments about
unknown persons approaching the windows of his home and attempting to look in. He
could not explain why he had not reported these incidents to police. He showed police
several cameras he had set up in the house pointing outward toward the driveway, but
when police asked to see footage from them he said that it was digital and went to a
laptop to which he did not have access.
The neighbor told police that as her gardener had arrived at her home that day,
defendant had run up to him and said, “I saw you run me off the road, and I have pictures
of your car and license plate.” She herself was present, and defendant repeatedly told
her, “Come down here bitch and I will beat the shit out of you.” She said he seemed
enraged and also said, “I will kill you!” The neighbor said that she was extremely
frightened of defendant because of many past incidents, including one in which he had
brandished a gun at his mother. The gardener too reported feeling threatened. Officers
spoke to defendant’s mother, who said that about a week earlier he had told her, “I would
burn the fucking house down with you and [sic; probably “in”] it.” She also confirmed
that about 12 years earlier, after the death of her husband (defendant’s father), defendant
had pointed a handgun at her. She told police that she believed her son was mentally
unstable. She reported, as summarized in the probation report, “that he constantly
believed that people were out walking in front of their residence at night when in fact
nobody was there.”
2
B. Proceedings Below
An information was filed on May 21, 2012, charging defendant with two counts of
issuing criminal threats. The first count names the neighbor as the victim; the second
names defendant’s mother.
On June 12, 2012, pursuant to plea agreement, defendant entered a plea of no
contest to count 1. When interviewed by the probation officer in July, defendant asserted
that the neighbor who called 911, and with whom he had been interacting for 30 years,
was a heroin dealer, child molester, and child pornography vendor. He said she had men
at her house at odd hours. He described an incident in which he saw two men, whom he
later learned were some of his neighbor’s many employees, delivering a large package of
what he later learned was heroin. According to the probation report, defendant “said that
he has infra red [sic] and night vision security cameras that have captured [the neighbor]
and many of her male associates, hopping the fence from her backyard into his mother’s
back yard at night.” He discovered that they were burying heroin in plastic boxes in his
back yard, to be dug up and sold when needed. He described an occasion in which a
female acquaintance, who was visiting with her 12-year old daughter, threatened to call
police because they saw the neighbor and a man naked, masturbating and having sex
while looking at the daughter. On another occasion, he reported, he saw the neighbor
“videotaping a male with over-sized genitalia” while the latter masturbated in her garage
with the door open.
Defendant apparently claimed to have made hours of surveillance footage
available to police. When asked why he thought they had ignored it, he said they had
been seduced by the neighbor. He had seen two of the three officers present at his arrest
enter the neighbor’s home in the middle of the night “and leave hours later ‘satisfied.’ ”
He also said that a detective engaged by him had discovered that the police department
left the neighbor alone in exchange for her “handing over a quota of names on unrelated
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criminal activities.” He said that his mother’s accounts of these matters were unreliable
because she suffered from mild dementia, early Alzheimer’s disease, and failing eyesight.
On the date set for receipt of the probation report, the court heard a motion by
defendant to be relieved of his appointed counsel. During the hearing defendant
exhibited marked confusion, stating among other things that he could not “even
remember why I’m in here.” He attributed this confusion to one or more strokes, for
which he said he had been treated by the Veterans’ Administration, but he also said that
what he could “basically” remember of the underlying events was that “there was a
person that tried to break into my house, and I confronted them in the front yard, and they
wind up arresting me.” He then opined that the charges against him were “based on a
person that has a propensity to make fraudulent statements to the police, 50 times a day,
for the last 30 years.” When defendant seemed unable to focus on the court’s inquiries
into his complaints against counsel, his attorney explained that defendant had informed
him that morning of a desire to withdraw his plea of June 12, and that counsel had
responded that he saw no legal basis to do so. Defendant confirmed that he wanted to
withdraw his plea, but when the court sought to ascertain his understanding of the
consequences—and specifically that “all charges would be reinstated”—defendant said,
“I’m not even sure what the charges mean.” When asked again whether he wanted to
withdraw his plea, he expressed uncertainty: “Well, I’m not sure what do [sic], because
I’m not sure what the charges actually mean.” Shortly thereafter he said, “I mean, why
am I being charged with two felony strikes, when—when the person threatened me with a
hypodermic needle, and he said he was going to stick me with it, and he was in my
parents’ yard trying to break into my parents’ house. Why am I being charged with two
felonies—two strikes, and the police didn’t seem to care about that.”
The court moved to other matters on its calendar in order to give defendant an
opportunity to confer further with counsel. When the matter reconvened counsel
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indicated that defendant still wished to withdraw his plea. Counsel inferred that this
request must rest on ineffective assistance of counsel since “[t]hat’s about the only basis”
that he could see for the request. The court asked defendant if he wanted to “withdraw
your plea of no contest in this case and essentially start over.” Defendant replied that he
did not understand what the court meant by “start over.” The court said the matter would
be back to where it was before he entered the plea, and would be set for trial. Defendant
asked whether he would be allowed to confront his accusers, then whether he would be
entitled to choose whom to subpoena. The court assured him he could “subpoena any
witnesses that are appropriate for the case in your defense.” Defendant declared his
incomprehension “how someone can make up these crazy, bizarre—first they said that I
was—,” whereupon the court interrupted that the hearing was not for “go[ing] into the
facts” of the case. Defendant then said, “Well, can’t I just press charges on them right
now while I’m here?” The court said he could not. Shortly thereafter the court again
asked defendant to express any concerns he had about defense counsel’s actions or
failures to act. Defendant replied, “Well, he failed to bring up the fact that this person
calls the police 50 times day, every day. Even when I’ve been locked up, she’s still
calling the police and saying all kinds of bizarre things. How can I be there when I’m
locked up in jail? She said I was a drug fiend. When he first—said you’re a jerk. I said,
‘here, take my blood.’ ” This was followed by a narrative that began plausibly but then
descended into the bizarre.1 The court asked whether he meant to convey that his
1
“THE DEFENDANT TABAYOYON: I’m telling you what he’s[, i.e., counsel
has] tried to explain to me. Then he—then, I said, where are you getting all of this
information from? He said, according to your neighbor. I said—your neighbor says you
got a criminal record. I have no criminal record. The neighbor says you got mental
problems. I don’t really think I got any mental problems, ’cause the VA did a psychiatric
evaluation for my truck driver’s license. Then, he says, your neighbor says you’re a dope
fiend. I said, well, how would she know if I’m a dope fiend? Here, here’s my arm. Take
the blood. How is it this person can say all these crazy, bizarre things, and here I’m
getting charged with two felony counts, two strikes, and no one—no one has even
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attorney had not adequately investigated the facts of the case, and defendant answered
yes. He also affirmed that he felt counsel had not adequately secured the medical care
defendant required.
The court then asked counsel to recount his activities in the case, which he did.
The court asked if counsel wished to add anything with respect to defendant’s
“essentially, Marsden motion.” Counsel stated that he believed defendant had
understood the charges and the consequences when he entered his plea, and that the
present motion was a case of “buyer’s remorse.” After counsel summarized his
professional experience, the court asked defendant if he wanted to “respond or add
additional information,” triggering another narrative that began with a list of aliases
attributed to defendant—perhaps in the probation report—and again straying into the
outlandish.2
bothered to check on any of the things that she said were credible? And they arrest me
when her and her other weirdo friends—I mean, when I say ‘weirdo,’ I mean, really,
they’re bizarre—were trying break into my parents’ house, and when I confronted them, I
didn’t even say—I said, what are you doing? And the guy pulls out the hypodermic
needle and threatens to stick me with that. And then—and then—and then, the police
comes up and arrests me? And when I tried to explain that to ’em, they told me—
“THE COURT: Okay.
“THE DEFENDANT TABAYOYON: —they told me I was a homophobic,
fascist, radical Christian.
“THE COURT: All right. Mr. Tabayoyon—
“THE DEFENDANT TABAYOYON: That’s what the police officer told me.”
2
“THE DEFENDANT TABAYOYON: Yeah, I do. I don’t—I don’t have any
aka’s. Why does this paper say I have all of these aliases on here? I’ve never been
arrested. I don’t know who Darryl James is or Darryl Lempke. I never used that name.
And the only—and the preliminary hearing, when my mom was here, she didn’t even
recognize her own son. She was only 10 feet away. She couldn’t recognize me, and her
own statement was that she never even called the police. She never even said that I
threatened her, at all. She’s talking about the water heater, when I replaced the hose that
6
The court denied that motion. The court suspended proceedings under Penal Code
section 1368 and referred defendant for an evaluation of his competence to stand trial.
On August 2, 2012, the court found defendant not competent and referred him to a
conditional release program for a “written recommendation as to whether the Defendant
should be required to undergo outpatient treatment or committed to a state hospital or to
any other treatment facility. (Penal Code 1368-1371).” On August 23, 2012, the court
found defendant not suitable for outpatient treatment and, after making additional
findings, ordered him placed in the trial competency program with directions that he
could be involuntarily medicated. Defendant appealed from that order.
In this court defendant has requested judicial notice of superior court filings
reflecting events subsequent to his taking the present appeal. We deferred a ruling on
that request, but now grant it because these subsequent events are clearly relevant to the
was leaking, and that was—the only thing I ever said is if I don’t fix the water heater, it
will burn down the house. That’s what I say. I don’t know how [the reporting neighbor]
would know that. And why is it that this—this woman can, you know, do all these
bizarre things, and I’m—you know, so if the first count—she’s called the police so many
times over the past years, especially the last year, all these—you know, I’ve been pulled
over by the police. The police says, we’ve got to report your car stolen. I’m said, this is
my car. I’m driving it. It’s registered and insured to me. How can—how can—I didn’t
report it stolen. I got pulled over 10 times, and how come—finally, I said, well, I want to
see—you know, don’t they record the dispatch when they get those calls? How can this
person—every time I drive my car, I get pulled over. And the dispatch says, well, we’ve
got to report this car was stolen. It’s my car. It’s registered, it’s insured to me. I can’t
drive my own car? And then, when I asked about, you know—
“THE COURT: Okay. Sir, I’m going to, again—
“THE DEFENDANT TABAYOYON: Well, to get to the point, the harassment
has gotten so bad, now that she comes with up with this felony stuff.
“THE COURT: Sir. Mr. Tabayoyon.
“THE DEFENDANT TABAYOYON: I didn’t threaten anybody.”
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question of mootness. Thus it appears that on November 20, 2012, the court found that
defendant was competent to stand trial based upon a certification of competency issued
by the director of a state hospital a week earlier. On December 6, 2012, the court
conducted a hearing either to proceed with defendant’s sentencing or to entertain a
motion to withdraw his plea. According to the minutes, defense counsel told the court
that defendant withdrew any motion to set aside his plea. The court suspended
imposition of sentence and placed defendant on probation. Among the terms of probation
was a requirement that he “[t]ake all medications as prescribed.”
DISCUSSION
Defendant challenges the trial court’s order authorizing the involuntary
administration of medication on five grounds: (1) the court purported to authorize
involuntary medication on multiple grounds, including that such medication was
necessary to restore him to competence, but the statute authorizing involuntary
medication on that ground specifies that no other ground for such an order must exist
(Pen. Code, § 1370, subd. (a)(2)(B)(ii)); (2) in any event the evidence was insufficient to
sustain an order for involuntary medication to restore competence (Pen. Code, § 1370,
subd. (a)(2)(B)(i)(III); (3) insofar as the order for involuntary medication was predicated
on defendant’s posing a danger to others, it was not supported by a substantiated finding
that he in fact posed such a danger (Pen. Code, § 1370, subd. (a)(2)(B)(i)(II)) or that
medication was in his medical interest (Washington v. Harper (1990) 494 U.S. 210, 227);
(4) the evidence was insufficient to sustain an order for involuntary medication on the
ground that defendant lacked capacity to make his own medical decisions (Pen. Code,
§ 1370, subd. (a)(2)(B)(i)(I)); and (5) the court failed to engage in the medication-specific
analysis which has been held necessary to justify the infringement on liberty occasioned
by involuntary medication (Carter v. Superior Court (2006) 141 Cal.App.4th 992, 1000;
United States v. Riviera-Guerrero (9th Cir. 2005) 426 F.3d 1130, 1137-1138).
8
Respondent contends that (1) defendant has failed to preserve these claims of error
because he did not object to the order on these grounds in the trial court; (2) the claims
are moot because the matter has proceeded to a final judgment and this court can grant no
effective relief; and (3) the trial court’s order for involuntary medication can be sustained
on the ground that defendant presented a substantial danger to others, a finding for which
the record contains substantial evidentiary support. We conclude that the appeal is moot
and that no exception compels us to address it on the merits rather than follow the general
rule requiring dismissal.
“Ordinarily, a moot appeal will be dismissed.” (City of Hollister v. Monterey Ins.
Co. (2008) 165 Cal.App.4th 455, 479, citing 9 Witkin, Cal. Procedure (4th ed. 1997)
Appeal, § 642, p. 669.) This is because generally, courts 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.) Thus 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 on merits].)
Defendant argues that the case is not truly moot because the order he challenges
may have had, or may yet have, collateral consequences from which he continues to need
judicial protection. He asserts that the case is “nearly identical” to People v. Succop
(1967) 67 Cal.2d 785 (Succop), where the defendant challenged proceedings leading to
his temporary commitment for observation as a mentally disordered sex offender. The
state argued that his challenge was moot because the observation period had ended with a
finding that he was a sex offender not amenable to treatment, whereupon he had been
committed to prison. Not surprisingly, the court declined to find his challenges to the
temporary commitment order moot; had his statutory rights been honored, the court
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wrote, “the trial court conceivably might have found that there was not probable cause for
believing him to be a mentally disordered sex offender. Such a finding would be relevant
to the question whether probation should be granted and to the matter of parole if a prison
sentence was imposed.” (Id. at p. 790.)
Far from closely resembling this case, the relevant circumstances in Succop
differed dramatically from those here. The defendant in Succop had appealed from the
trial court’s judgment of conviction; the claimed errors could be remedied, and were
remedied, by reversing the judgment in relevant part, vacating the defective order for
temporary commitment, and remanding for further proceedings as if that order had not
been made.3 Defendant, in contrast, has not appealed from the judgment and does not
seek further proceedings in the trial court.4 He asks only that we “reverse the trial court’s
3
“The order committing defendant to Atascadero State Hospital for a period not
to exceed 90 days and the order denying probation are vacated. The judgment of
conviction is reversed insofar as it commits defendant directly to imprisonment in a state
prison and is otherwise affirmed. The defendant is ordered returned to the superior court
for a hearing to determine whether there is sufficient cause to believe him to be a
mentally disordered sex offender and for such further proceedings as the trial court deems
proper . . . .” (Succop, supra, 67 Cal.2d at p. 790.)
4
Conceivably, if we found defendant’s claims of error to be sound, and if he
sought reversal and remand, we might be able to set aside the judgment and order further
proceedings on whether he could be involuntarily medicated. Of course, this hypothesis
immediately collides with the conundrum that, so far as the record shows, he is now
competent, such that there would be no basis for a competency hearing, let alone for
consideration of involuntary medication. If that were confirmed, the judgment having
been reversed, all the court could do would be to set the matter for trial, whereupon we
would expect defendant to enter the same plea, and the court to enter the same judgment,
we had set aside. We fail to see how such proceedings could advance any interest of
defendant’s.
Of course it is possible that, pending remand, defendant might stop taking his
medication, or might otherwise revert to a state in which he was not competent to defend
himself. In that case, if we set aside the judgment and directed further proceedings, the
trial court would presumably conduct a new competency hearing in conformity with
statutory requirements. It might then again conclude—this time unimpeachably—that
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order and issue a written opinion instructing the trial court to adhere to the provisions of
Penal Code section 1370 in all future cases.”
We fail to see what interest of defendant’s would be “protected” by reversing the
order authorizing involuntary medication. Defendant states that had the trial court here
“comported with the statutory and due process requirements for issuing an involuntary
medication order, the court may have reached a different finding, and [that] may in turn
have impacted the court’s subsequent sentencing decisions.” But this is a description of
how past events were affected by the claimed errors. The question of mootness is chiefly
concerned with what purpose will be served, or what concrete goal accomplished, by
granting an appellate remedy. The error of which defendant complains has long since
passed beyond correction. That water has flowed under the bridge, down the river, and
out to sea.5
involuntary medication was appropriate; that scenario, too, would presumably lead to a
judgment identical to the one we had (hypothetically) set aside.
The only way we see a different outcome is if the court concluded, at a new
competency hearing, that defendant could not be involuntarily medicated in conformity
with the statute. In that case he might remain confined for three years while attempts
were made to restore his competency by other means. (Pen. Code, § 1370, subd. (c)(1);
see id., §§ 422, subd. (a), 18, subd. (a).) We fail to see how this possibility could defeat
an appearance of mootness, even if defendant sought such a disposition—which, we
emphasize, he does not.
5
In rejecting the claim of mootness, the court in Succop also alluded to the
stigmatizing effect of the order there at issue, declaring the defendant “entitled to the
opportunity to clear his name of the adjudication that he is a probable mentally disordered
sex offender.” (Succop, supra, 67 Cal.2d at p. 790.) Other courts have recognized that
the “stigma” inflicted by some commitment orders may require consideration of their
soundness on the merits even where an order has become technically moot. (See In re
Michael D. (1977) 70 Cal.App.3d 522, 524, fn. 1; Conservatorship of Johnson (1991)
235 Cal.App.3d 693, 696, fn. 1.) Defendant does not invoke this rule, however, and we
do not find it applicable. His appellate challenge is not directed to the finding that he was
incompetent to stand trial, and that he be confined accordingly, but to the further order
subjecting him to involuntary medication. To the extent the proceedings may have
11
Nor do we see how we could afford an effective remedy by issuing “a written
opinion instructing the trial court to adhere to the provisions of Penal Code section 1370
in all future cases.” That court is already under a solemn obligation to comply with
applicable statutes; any failure to do so must ordinarily be attributed to oversight. We
might view the case differently if the requirements now cited by defendant had been
squarely asserted below, and the trial court had refused to honor them. But so far as this
record shows, these requirements were simply overlooked by the trial court and the
parties. A further directive from this court not to overlook them in the future would
accomplish little if anything. Indeed, a judicial mandate buried in the casebooks is more
easily overlooked than one set forth in a governing statute. So far as this record shows,
the remedy for threatened future infractions is simply to bring the statutory requirements
to the trial court’s attention.
Similar considerations defeat defendant’s attempt to bring this case within an
exception to the rule of mootness that arises where an issue in the present appeal is likely
to come up again between the same parties. (See Cucamongans United for Reasonable
Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479.) Defendant
asserts that this rule applies here because he is on currently on probation, he may be
charged with a probation violation, he may again be found incompetent, and “[w]ithout
intervention from the Court of Appeal, the Superior Court is likely to make the same
erroneous medication order.” To borrow a popular phrase, that’s a lot of if’s. But more
tellingly, we see no reason to believe that—assuming the court erred as claimed—it
would repeat that error in a subsequent proceeding. As respondent notes in arguing that
the claim has not been preserved for appeal, none of the statutory and constitutional
attached any stigma, it would seem largely attributable to the finding of incompetency;
the further order for involuntary medication might even be understood to lessen the
stigma by signifying that the condition causing his mental incompetence was treatable.
12
requirements here asserted by defendant were brought to the trial court’s attention. We
will not assume that, if they had been brought to the court’s attention, the court would
have ignored them and made the same order. Insofar as defendant relies on claimed
insufficiencies in the evidence before the court, there is no reason to suppose that the
record at a subsequent hearing would not be suitably augmented. In short, there is no
reason to expect that the court would make the same order, or that any order it might
make would suffer from the same deficiencies identified here.
Finally, defendant invokes the rule that, technical mootness notwithstanding, an
appellate court will consider issues of public importance that are “ ‘ “capable of
repetition, yet evading review.” ’ ” (Press-Enterprise Co. v. Superior Court (1986) 478
U.S. 1, 6.) We agree that cases of this kind will tend to evade review, at least by direct
appeal, because of the limited duration of many, if not most, commitments to restore
competence. However we are unable to conclude that the case presents an important
issue that is likely to recur. All of the cases cited by defendant presented questions of
obvious general application to multiple persons and cases. (See id. at p. 3 [“whether [a
newspaper] has a First Amendment right of access to the transcript of a preliminary
hearing growing out of a criminal prosecution”]; In re Kieshia E. (1993) 6 Cal.4th 68, 74
[“whether a child abuser may ever intervene as the victim’s de facto parent in
proceedings which arose from the abuse”]; Abbott Ford, Inc. v. Superior Court (1987) 43
Cal.3d 858, 863, fn. omitted [“whether a ‘sliding scale recovery agreement,’ . . . in a
personal injury action, represents a ‘good faith’ settlement . . .]; John A. v. San
Bernardino City Unified School Dist. (1982) 33 Cal.3d 301, 307 [“[w]hat process is due a
student facing expulsion from a public school”].)
Defendant identifies, and we have detected, no comparably broad “issue of public
importance” here. He contends that “the trial court’s abject failure to adhere to the
statutory and due process requirements involved in issuing such an order are of the
13
utmost importance to future defendants in Monterey County.” But accepting arguendo
that the case in fact presents such an “abject failure,” there is no reason to suppose that
the error is likely to be repeated in future cases. Accordingly, the case is moot, and no
adequate reason appears to withhold the usual consequence of dismissal.
DISPOSITION
The appeal is dismissed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA, J.
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