Opinion
A099816
10-20-2003
THE PEOPLE, Plaintiff and Respondent, v. PAUL GEORGE, Defendant and Appellant.
Factual and Procedural History
In 1970, while in the military, George was convicted of orally copulating two boys, ages 11 and 12, and sentenced to four years in Leavenworth prison. In 1987, he pled guilty to six counts of child molestation, each involving a different victim. (Pen. Code, § 288, subd. (a), (b) & (c).) George received an aggregate sentence of 16 years in prison. On June 18, 1999, following a jury trial, George was committed to the Atascadero State Hospital for a term of two years pursuant to the Sexually Violent Predators Act (SVPA), Welfare and Institutions Code section 6600 et seq.
On May 16, 2001, just prior to the expiration of Georges initial two-year commitment, the People filed a petition under section 6604 to extend the commitment by an additional two years. After numerous continuances, the trial court found probable cause for the new petition and set the matter for trial. The trial eventually began on July 16, 2002, and on August 2, 2002, the jury returned its verdict finding George to be a sexually violent predator. George was recommitted for an additional two-year term, expiring on June 18, 2003. George filed a timely notice of appeal.
Briefing was not complete in this appeal until August 13, 2003, in part because of three requests by appellant for extensions of time. While the matter has been pending on appeal, recommitment proceedings have commenced in San Francisco County Superior Court. A probable cause hearing has been held, and George has been ordered to remain in custody pending trial. A jury trial is scheduled for December 5, 2003.
Discussion
By letter dated September 10, 2003, this court requested supplemental briefing on whether this appeal should be dismissed as moot because the term of commitment has expired. The People agree the appeal is moot and may be dismissed. George contends the appeal should not be dismissed as moot because: (1) a petition for recommitment has been filed, and any defects in the commitment order that is the subject of this appeal assertedly would invalidate the subsequent commitment order; and (2) the issues presented are of public interest and capable of evading appellate review because appellate proceedings take longer than two years to complete.
It is the function of an appellate court to decide actual controversies by judgments that can be carried into effect. It should not render opinions on moot questions or declare principles of law that cannot affect the matter in issue in the case before it. (City of Los Angeles v. County of Los Angeles (1983) 147 Cal.App.3d 952, 958.) When, during the pendency of an appeal, an event occurs rendering it impossible for the appellate court to grant any effectual relief, the court will not proceed to a formal judgment but will dismiss the appeal. (Ibid.)
In People v. Hurtado (2002) 28 Cal.4th 1179, 1186 (Hurtado), the California Supreme Court held that an appeal from an order of commitment under the SVPA becomes moot when the term of commitment expires while the appeal is pending. (See also People v. Cheek (2001) 25 Cal.4th 894, 897-898.) Here, Georges term of commitment under the order from which the appeal has been taken expired on June 18, 2003. His appeal is therefore moot.
Notwithstanding the mootness of the appeal, it is also necessary to consider whether this court should exercise its "discretion to decide the issue[s raised] for the guidance of future proceedings before dismissing the case as moot." (Cheek, supra, 25 Cal.4th at pp. 897-898; Hurtado, supra, 28 Cal.4th at p. 1186.) In Cheek, the court exercised its discretion to review the meaning of the phrase "show cause hearing" under section 6605, despite the mootness of the issue in that case, because it was "likely to recur while evading appellate review [citations], and involve[d] a matter of public interest." (25 Cal.4th at pp. 897-898.) Likewise, in Hurtado, the court exercised its discretion to consider whether a jury must be instructed on its duty to find the defendant likely to engage in predatory sexually violent behavior because the issue "is raised in virtually every SVPA trial and appeal—and the two-year limit on each commitment makes it likely that any appeal raising the issue would become moot before we could decide it." (28 Cal.4th at p. 1186.)
Unlike Hurtado and Cheek, however, Georges appeal presents neither an issue that will recur, nor a matter of public interest. Any decision on the merits of the issues raised in this appeal will have no effect on the outcome of the recommitment proceedings or on the commitment proceedings of other defendants. Appellant contends that his order of commitment as a sexually violent predator must be reversed because the court refused to instruct the jury that it was required to find beyond a reasonable doubt that he would have serious difficulty controlling his sexually violent behavior. George acknowledges that this precise issue was pending before the California Supreme Court in People v. Williams (review granted July 17, 2002, S107266) when the briefs in this appeal were submitted. The Supreme Court has since decided Williams, holding that "a commitment rendered under the plain language of the SVPA necessarily encompasses a determination of serious difficulty in controlling ones criminal sexual violence, as required by Kansas v. Crane [(2002) 534 U.S. 407]. Accordingly, separate instructions or findings on that issue are not constitutionally required, and no error arose from the courts failure to give such instructions in defendants trial." (31 Cal.4th 757, 777, fn. omitted.) Thus, a decision on this issue is no longer necessary to resolve a matter of public interest, and the issue is unlikely to recur.
Georges appeal is also grounded on his contention that his rights to present a defense, to a fair trial before an impartial jury and to due process were violated when the trial court refused to instruct the jury on the prosecutions violation of the discovery laws. He argues that the prosecutors failure to give him copies of documents that she had subpoenaed from the Department of Mental Health until after she had relied on them in cross-examining defendants expert, and until the witness was dismissed and no longer available to testify, resulted in prejudice to his case. It is undisputed, however, that these documents now have been turned over to defendants counsel. Any delay in producing them is not relevant to Georges pending recommitment hearing. The issue is not likely to recur.
Finally, George contends that the order of recommitment should be reversed because the prosecutor violated the courts order that she not elicit testimony from her experts regarding the incompetent hearsay statements of nontestifying doctors. George is correct that the prosecutor did elicit such testimony in violation of the courts ruling on a number of occasions. Georges objections to the testimony were sustained, however, and the court admonished the prosecutor not to continue to violate the courts order. Any purported prosecutorial misconduct is of no relevance to subsequent recommitment proceedings. Presumably, the prosecutor will abide by the courts admonition in the future. For these reasons, we conclude that there is no basis upon which to consider any of the issues raised by George.
People v. Ward (2002) 97 Cal.App.4th 631 is not to the contrary. In Ward, the court addressed the potential mootness of the appeal as follows: "The People suggest the appeal may be moot if defendant has been released. We decline to consider that argument because there is no evidence in the record that defendant has been released. Instead, he is apparently the subject of a third subsequent petition, now pending, seeking another two-year commitment." (Id. at p. 634.) Contrary to Georges assertion, Ward does not hold that the mere fact that a defendant remains in custody pending the outcome of a SVPA recommitment petition necessarily demonstrates that the issues raised on appeal from the original commitment order will impact the validity of the subsequent proceedings. Rather, Ward specifically declined to consider whether the appeal was moot. More importantly, Ward raised a jurisdictional issue—whether the trial court lost jurisdiction when it dismissed the recommitment petition because it was supported by only one psychological evaluation—which, unlike the issues raised in the present case, had the potential to invalidate future commitment proceedings. The SVPA requires that the defendant must be in custody when a recommitment petition is filed. It also provides, however, that "[a] petition shall not be dismissed on the basis of a later judicial or administrative determination that the individuals custody was unlawful, if the unlawful custody was the result of a good faith mistake of fact or law." (§ 6601, subd. (a)(2); People v. Badura (2002) 95 Cal.App.4th 1218, 1222-1223.) Had the court determined that the original commitment resulted in the unlawful custody of the defendant because of a lack of jurisdiction, which it did not, it was possible that the court might find that the state was precluded from proceeding on the pending recommitment petition. George, however, does not raise any jurisdictional issues. To the contrary, if this court were to reverse the order appealed from on the grounds asserted, defendants custody would remain lawful and further commitment proceedings would not be precluded. Such an outcome would at most require a retrial under the SVPA, which would be no different from the trial of the pending recommitment petition already scheduled for December.
The cases cited by George discussing mootness under the former "Mentally Disordered Sex Offender" (MDO) statutes are similarly distinguishable. (People v. Williams (1999) 77 Cal.App.4th 436, 441, fn. 2; People v. Fernandez (1999) 70 Cal.App.4th 117, 134-135.) In Fernandez, supra, 70 Cal.App.4th at pages 134-135, the court held that the appeal was not moot because a decision on whether the trial courts failure to comply with the statutory procedure concerning commencement of trial divested it of fundamental jurisdiction to proceed "may still affect the lower courts right to continue jurisdiction under the original commitment as well as the recommitment." Likewise, in Williams, supra, 77 Cal.App.4th at page 441, footnote 2, the court held that the appeal was not moot because the issue raised—whether substantial delay by the medical director of a state mental hospital in submitting to the district attorney the written evaluation of defendants remission in violation of the mentally disordered offender law required dismissal of the petition to extend defendants commitment—was "important and of continuing interest."
Disposition
The appeal is dismissed as moot.
We concur: Corrigan, Acting P. J., Parrilli, J. --------------- Notes: All statutory references are to the Welfare and Institutions Code unless otherwise noted.