Opinion
A111105
12-8-2006
THE PEOPLE, Plaintiff and Respondent, v. LEON SEYMOUR, Defendant and Appellant.
Appellant Leon Seymour appeals from a jury finding and judgment that extended his civil commitment to Atascadero State Hospital pursuant to Welfare and Institutions Code section 6600 et seq. For the reasons stated below, we dismiss Seymours appeal as moot.
All statutory references herein are to the Welfare and Institutions Code.
BACKGROUND
Between 1973 and 1982, Seymour was convicted of three rapes and two assaults with intent to commit rape. In 1972, Seymour picked up a female hitchhiker on Highway 101 in Mendocino County, drove her to a secluded location, threatened her with a gun, blindfolded her, handcuffed her, and raped her. In 1976 he gave a ride to a 19-year-old woman, apparently his cousin, took her to a secluded spot, threatened her with violence, and raped her. In 1982, Seymour forced a woman from her car and into his. He threatened her with a gun, drove her to a remote area, forced oral copulation and raped her. He pled guilty, was convicted, and sentenced to prison in each case.
Shortly after his first rape in 1972, Seymour approached a woman in a parking lot, forced her into his car, and threatened her with a gun. He indicated his intent to rape her, but she began crying; he showed her that the gun was empty and gave her his name before letting her go. Within days of the 1982 rape, he approached a woman in a parking lot, threatened her with a knife, and forced her into her car. He then forced her to drive to several locations. He attempted to rape her but was unable to do so. Seymour was convicted for each of these incidents, but points out that these two were not qualifying offenses under the Sexually Violent Predator Act (SVPA), section 6600 et seq.
After serving his prison term, Seymour was committed under the SVPA to Atascadero State Hospital for a two-year period that expired in January 2004. In November 2003, the People filed a petition to extend his commitment for another two years. After the court found probable cause, a trial was held. In August 2005, the jury found that the allegations in the petition were true, and the court ordered his commitment extended for two more years.
Seymour filed a timely notice of appeal after trial. His challenged term of commitment expired in January 2006, while this appeal was pending. The parties provided additional briefing at our request as to whether this case should be dismissed as moot and, if so, whether we should decide any issues for the guidance of future proceedings. Seymour states in his supplemental brief that another petition has been filed seeking to extend his commitment for another two-year term.
DISCUSSION
Seymour argues that the trial courts order and judgment must be reversed because of insufficient evidence that he suffers from a current mental disorder and prosecutorial misconduct in closing argument. We find that this appeal is moot in light of the expiration of the term of commitment that Seymour challenges.
I. The Mootness Doctrine Applies Here
Before analyzing whether or not this matter is moot, we note that our task is complicated by the time frame outlined in section 6600 et seq. for extended commitment proceedings. The SVPA provides for civil commitment to the California Department of Mental Health (DMH) for a renewable two-year term of criminal defendants who, after serving their prison term, are found to be sexually violent predators (SVP). (§§ 6604, 6605.) An SVP is defined as "a person who has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1).)
If certain preliminary administrative requirements are met (§ 6601), a petition is filed and, if a court finds that there is "probable cause" to believe that a person named in a petition is likely to engage in sexually violent predatory criminal behavior upon release (§ 6602, subd. (a)), a trial is conducted "to determine whether the person is, by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her release . . . ." (Ibid.) The alleged SVP is entitled to a trial by jury, the assistance of counsel, the right to retain experts to perform further evaluations, and access to relevant medical and psychological reports. (§ 6603, subd. (a).) The trier of fact must "unanimously" determine beyond a reasonable doubt whether the person named in the petition is in fact an SVP. (§§ 6603, subd. (f), 6604.) If a person is determined to be an SVP, he or she is committed to the custody of the DMH for two years "for appropriate treatment and confinement in a secure facility," subject to annual review and possible extended commitment. (§§ 6604, 6604.1, 6605.)
Extended commitment terms are also for two-year periods. (§ 6604.1, subd. (a).) Each SVPA commitment proceeding is separate from any other, and must be conducted with essentially the same procedures as the original proceeding. (Butler v. Superior Court (2000) 78 Cal.App.4th 1171, 1179-1182; § 6604.1, subd. (b) [stating that the rights, requirements, and procedures set forth in section 6603 apply to extended commitment proceedings]; (People v. Munoz (2005) 129 Cal.App.4th 421, 429-430 (Munoz).) Any extended commitment must be based on a finding about an SVPs mental condition at the end of their current two-year term. (Id. at p. 429.)
As a result of this time frame, it is apparent that some appeals have remained pending after the expiration of the challenged commitment term, particularly in light of inevitable delays caused for a variety of reasons in the course of preparing for trial and, if necessary, an appeal. We are acutely aware of the tension between our duty to refrain from offering our advice on moot matters and our discretionary duty to consider certain important matters that are capable of repetition and of evading review under such circumstances. We are also aware that other courts reviewing SVP matters have called on the Legislature to address this time frame and the delays in the process. Division One of this Appellate District stated recently: "Indications of widespread trial delays are in the record before us . . . . We call upon the Legislature to revisit the SVPA and impose a bottom-line, nonwaivable time limit on conducting the probable cause hearing after filing the SVP petition." (People v. Hayes (2006) 137 Cal.App.4th 34, 48-49 (Hayes).)
Similarly, the court in Litmon v. Superior Court (2004) 123 Cal.App.4th 1156 (Litmon), cited by Division One in Hayes, supra, 137 Cal.App.4th at pages 48-49, stated: "[T]here must be some limit to the length of time trial on an SVP petition can be delayed . . . `[s]urely the Legislature did not contemplate the lengthy delay which occurred here. . . . We recognize that the absence of specific time limits in the SVPA bespeaks a legislative intent to provide courts with much-needed flexibility in holding SVP trials. However, we also believe our trial courts need some guidance in how to manage their SVP case loads." (Litmon, at pp. 1171-1172.)
We note that the California electorate approved of Proposition 83 on November 7, 2006, which measure includes significant changes to the SVP commitment, recommitment, and review process. This is a particularly appropriate time for the Legislature to examine all SVP time frames in order to determine if further guidelines are necessary to ensure that matters are resolved before mootness questions become relevant. We respectfully call upon the Legislature to undertake such a review.
In the present case, we conclude that we should not make an exception to the mootness doctrine because the case does not present important and recurrent matters in light of recent case law about the collateral estoppel doctrine in SVP proceedings.
We have the authority to dismiss this appeal as moot, whether or not we exercise our discretion to address any of its merits for the guidance of future proceedings. Our Supreme Court considered a similar circumstance in People v. Cheek (2001) 25 Cal.4th 894 (Cheek), and dismissed that case as moot while addressing its merits. Cheek was committed to a two-year term to the DMH after he was found to be an SVP. (Id. at p. 897.) In 1998, the DMH, as required by section 6605, subdivisions (a) and (b), examined Cheeks mental condition and gave him written notice of his right to petition the court for conditional release pursuant to section 6608. (Cheek, at pp. 897-898.) Cheek did not affirmatively waive his right to petition for conditional release, thereby requiring the superior court to conduct a show cause hearing pursuant to section 6605, subdivision (b). The court, ruling solely on the basis of the written expert reports, found no change in Cheeks mental condition and ordered him to remain at Atascadero State Hospital for the duration of his two-year term of commitment. (Cheek, at pp. 897-898.) The issues on appeal were whether Cheek had the right to present oral testimony, including expert testimony, and to cross-examine the authors of adverse medical reports at the court hearing. (Id. at p. 903.)
The appellate court dismissed Cheeks appeal because his original two-year civil commitment under the SVPA expired while his appeal was pending (Cheek, supra, 25 Cal.4th at p. 898), which dismissal the Supreme Court affirmed. (Id. at p. 903.) The Supreme Court nonetheless exercised its discretion to discuss the merits of the case for the guidance of future proceedings because the issues Cheek raised were likely to recur while evading appellate review and involved matters of public interest. (Id. at pp. 898, 903; see also Costa v. Superior Court (2006) 37 Cal.4th 986, 994, 1030 [remanding a matter involving an initiative measure to the appellate court for dismissal as moot, but issuing an opinion in order to provide guidance for future cases].)
Similarly, in Hayes, supra, 137 Cal.App.4th 34, Division One of this court considered an SVPA case involving two successive extended commitment petitions, but refrained from ruling with regard to issues raised about the first petition because they were moot. (Hayes, at p. 44.) The first petition, or "Petition 1" as the court referred to it, had not yet proceeded to trial on the eve of the two-year extended commitment period. (Ibid.) The People filed a second petition to recommit the defendant for an additional two-year period; the trial court consolidated the petitions, conducted a trial, and then conducted a probable cause hearing on the second petition. (Ibid.) Division One, while considering whether the trial court made a prejudicial error in holding the probable cause hearing on the second petition after, rather than before, trial on that petition, specifically held that "[a]ny issue regarding Petition 1 is moot, because the two-year term that could have been imposed on that petition has now expired." (Id. at p. 52.)
Precedent also exists to determine the merits of this case if necessary to resolve an important, recurrent issue in SVP cases, even if the matter is moot. In People v. Hurtado (2002) 28 Cal.4th 1179, 1186 (Hurtado), our Supreme Court considered whether or not the trier of fact at a commitment trial must find beyond a reasonable doubt that the petition respondent is likely to commit sexually violent predatory criminal acts under the SVPA. (Hurtado, at p. 1186.) The Supreme Court, relying in part on Cheek, supra, 25 Cal.4th 894, found that the case had become moot in light of the expiration of the subject commitment, but the court "retained it for decision because the issue it raises is recurrent—indeed, it 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." (Hurtado, at p. 1186.) It affirmed the appellate courts ruling that the trial court had erred in failing to instruct the jury to determine if there were predatory acts, but that the error was harmless beyond a reasonable doubt. (Id. at pp. 1194-1195; see also Litmon, supra, 123 Cal.App.4th at p. 1167 [determining a technically moot issue regarding SVPA that presented an important question affecting the public interest that was capable of repetition and evading review].)
While Seymour cites some of these recent cases, he does not directly address their application of the mootness doctrine to SVPA cases. Instead, he relies heavily on cases that preceded those we cite above, and in which the court addressed different statutory schemes, or found the appeal moot but decided to nonetheless reach the important issues presented. (See, e.g., Litmon, supra, 123 Cal.App.4th at. p. 1166 [stating that "it is appropriate for us to resolve the issue presented, despite its mootness" regarding an SVPA matter]; People v. Williams (1999) 77 Cal.App.4th 436, 441, fn. 2 [referring to matter involving a mentally disordered offender proceeding as "technically moot," but nonetheless exercising its discretion to determine important issues of continuing interest]; People v. Martin (1980) 107 Cal.App.3d 714, 717, fn. 2 [involving a mentally disordered sex offender commitment proceeding pursuant to section 6316.2, which extension hearing involved several of the same issues involved in the appeal].)
Seymour also relies on People v. Feagley (1975) 14 Cal.3d 338, 345 (Feagley). In Feagley, our Supreme Court held that a matter involving a mentally disordered sex offender proceeding was not moot. The appellant pled guilty to simple battery after being charged with molesting two young girls, but investigation disclosed he had a history of touching womens hair. (Id. at pp. 342-343.) The trial court adjourned the criminal proceedings before sentencing and instituted a civil statutory procedure for determining if the appellant was a mentally disordered sex offender; the jury, by a vote of nine to three and applying a "preponderance of the evidence" standard, found this was the case and he was ordered committed for an indefinite period to the Department of Mental Hygiene. (Id. at pp. 343-344.) After the appellate hearing was granted, appellant was declared to no longer be a danger to the health and safety of others and returned to the trial court, which placed him on probation on the criminal charge and ordered his release. (Id. at p. 345.) Under these circumstances, the Supreme Court found that the matter was not moot for two reasons. First, the appellant was entitled to the opportunity to clear his name on the adjudication that he was a mentally disordered sex offender because he would still suffer "substantial legal liabilities," since the lower court findings would still require that he register as a "sex offender" if he moved from one city or county to another under statutory law. Second, the case raised important constitutional issues that affected significant numbers of people. (Ibid.)
Seymours case presents different circumstances than those found in Feagley, supra, 14 Cal.3d 338. Unlike Feagley, Seymour previously has been found to be an SVP, which finding will not be changed regardless of the outcome of this case. Also, Seymour does not argue how he would suffer other "substantial legal liabilities" if this appeal is dismissed. Moreover, the Supreme Court plainly considered the matters raised by Feagleys indefinite commitment to be important and of significant public interest. As we discuss further post, such is not the case here.
Seymour also cites Hubbart v. Knapp (9th Cir. 2004) 379 F.3d 773 (Hubbart), in which the Ninth Circuit considered, and affirmed, the district courts denial of a habeas corpus petition by the first person confined under the SVPA. (Hubbart, at p. 775.) Hubbart argued that his confinement violated federal due process because the state had failed to follow its own rules in confining him under the SVPA. (Hubbart, at p. 779.) The Ninth Circuit first considered the governments argument that the case was moot because Hubbart was petitioning for habeas relief from an expired term of commitment, and was entitled in any event to a fresh evaluation of his current mental health and criminal predilection because each two-year term of SVPA commitment constitutes a new and distinct action. (Hubbart, at p. 777.) The court held that Hubbarts habeas petition was not moot "because his claims were capable of repetition yet evading review." (Ibid.) The court reasoned that Hubbart had already been subject to a second SVPA commitment proceeding, in which he continued to make the same arguments about the constitutionality of the SVPA. (Hubbart, at pp. 777-778.) It also held that, "for purposes of determining mootness in connection with Californias repeating pattern of two-year commitments under the SVPA, a federal constitutional claim evades review if the challenged action expires before a federal appellate court has the opportunity to fully consider the allegation." (Hubbart, at p. 778.) The court determined that it was "almost certain" that a state detainee under the SVPA would be unable to exhaust state remedies and fully litigate a habeas petition in federal courts within two years. (Hubbart, at p. 778.)
The People argue that Hubbart, supra, 379 F.3d 773 was decided under the federal mootness doctrine, which, unlike Californias, does not require that the issue involved relate to an important matter of public interest. We are not persuaded that this is the case. (See, e.g., Foster v. Carson (9th Cir. 2003) 347 F.3d 742, 746-748 [discussing cases in which the public interest was an important consideration in determining whether a matter was moot].) Indeed, the Ninth Circuit in Hubbart addressed issues that were important and likely to recur in other cases. (Hubbart, supra, at pp. 779-782 [addressing the legality of the petitioners custodial status at the time the commitment petition was filed, whether the state courts construction of the statute provided minimal procedural safeguards, and whether the statutory scheme violated equal protection].) Regardless, cases from the federal courts of appeal "provide persuasive rather than binding authority." (People v. Bradford (1997) 15 Cal.4th 1229, 1292.)
The People also argue that Seymour should not be heard regarding his due process contentions because he has caused significant delay in his case, having requested, and received the courts approval for, three trial continuances below, and then not objecting to a fourth caused by a flu epidemic at Atascadero State Hospital. The trial, first scheduled for August 2004, did not take place until the following August. We also note that Seymour filed two extensions of time to file his opening brief to this court, in December 2005 and February 2006, the former being shortly before the end of his two-year commitment ended and the latter just after. We need not determine whether Seymour should not be heard on the issue, but note that at least one court has held so with regard to similar circumstances involving an SVPA trial. (Orozco v. Superior Court (2004) 117 Cal.App.4th 170, 179-180 [finding that the defendant by never indicating he was ready for trial and failing to raise the timeliness of trial below, waived the issue of whether the delay in bringing the matter to trial violated his due process].)
Seymour also argues that the matter is not moot because he would be released from custody if we were to determine that his appeal had merit. Seymour cites only to Burks v. United States (1978) 437 U.S. 1, without explanation. That case involved the application of double jeopardy in a criminal prosecution, which is not relevant here. Seymours release would not be required if he were to prevail in this appeal. Even if he succeeded on the merits here, Seymour would remain in custody pending the outcome of the latest petition filed against him. Seymour states in his supplemental briefing to this court: "Appellant remains in custody. A third petition has been filed by the San Mateo County District Attorney. (The second petition for recommitment.) That matter is currently set for trial in October, 2006."
Seymours statement means necessarily that the trial court has already found there is probable cause to believe that Seymour is likely to engage in sexually violent predatory criminal behavior upon his release, as trial cannot be ordered prior to that determination. (§ 6602, subd. (a).) The trial court maintains Seymour in custody pending the outcome of that trial. Section 6602, subdivision (a) states in relevant part: "If the judge determines that there is probable cause, the judge shall order that the person remain in custody in a secure facility until a trial is completed and shall order that a trial be conducted . . . ."
Section 6602 applies to extension of commitment as well as commitment proceedings. (Munoz, supra, 129 Cal.App.4th 421, 429 [stating with regard to the SVPA statutes that "these same demanding procedures, including new evaluations, preliminary review by the trial court, preliminary hearing and trial, must be complied with in extending an SVP commitment," and citing numerous cases supporting this conclusion].) Accordingly, there is no basis in Seymours claim that he would be released if he prevailed in this appeal.
Accordingly, for all of the reasons stated herein, we find this matter to be moot and dismiss the appeal. (Cheek, supra, 25 Cal.4th at pp. 898, 903.)
II. Seymours Arguments
Seymour urges that even if we find the appeal to be moot, we should exercise our discretion to decide its merits based on his challenges to the sufficiency of the evidence. We decline to do so for the following reasons.
Under the SVPAs framework, the People were required to prove at trial that Seymour (1) had been convicted of at least two sexually violent offenses; (2) had received a determinate term for the convictions; (3) had a diagnosable mental disorder; and (4) his disorder made it likely that he would engage in sexually violent predatory conduct if released. (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) Seymour argues that the People did not submit sufficient evidence to establish that he suffered from a current mental disorder because no evidence was submitted that he had a condition which currently resulted in his inability to control his behavior:
"Essentially, the Peoples evidence involve[s] the details of Seymours prior convictions and the fact that he has declined to go through the SVP treatment program at Atascadero. It is acknowledged by the Peoples experts that Seymour behaves well in custody. He has had no incidents indicating an inability to control his own behavior since his incarceration, over twenty years ago. This is likely to remain the state of the evidence in future commitment trials. Seymour contends that this fails to satisfy the requirement that a current mental disorder be proven beyond a reasonable doubt."
Seymours argument does not merit our making an exception to the mootness doctrine for a number of reasons.
A. Each SVPA Proceeding is Separate and Independent
As we have already discussed, under the SVPA, the prosecution must prove anew in each SVP extended commitment proceeding that Seymour currently suffers from a mental disorder, based on new evaluations and evidence presented to the jury without regard for the findings made in prior proceedings. (See, e.g., Munoz, supra, 129 Cal.App.4th 421, 429 ["an SVP extension of commitment hearing is a new and independent proceeding at which, with limited exceptions, the petitioner must prove the defendant meets the criteria, including that he or she has a currently diagnosed mental disorder that renders the person dangerous"].) Therefore, issues regarding the sufficiency of evidence introduced at this commitment proceeding have little if any relevance to future proceedings.
B. Seymour In Effect Makes a Routine "Weight of the Evidence" Argument
Seymour argues that the prosecutions evidence was plainly insufficient regarding his current condition because it was limited to the details of his prior convictions and the fact that he has declined to go through the SVP treatment program at Atascadero. Seymour mischaracterizes that evidence, which clearly addressed his current condition. Rather than raise any significant legal issue, Seymour in effect requests that we weigh the evidence presented at trial that he suffered from a current mental disorder.
The prosecution called two expert witnesses, Drs. Clipson and Korpi, both of whom testified that Seymour currently suffered from, among other things, "Paraphilia, not otherwise specified" (NOS), a lifelong disorder which might be controlled but not cured, and which made it likely under the circumstances that Seymour would engage in sexually violent predatory conduct if released. Dr. Clipson prepared his evaluation of Seymour in September 2003 and Dr. Korpi completed his in 2003 as well. They each testified that Seymour refused to be interviewed by them, telling them he was doing so upon the advice of his counsel. However, the experts reviewed Seymours medical records in preparing their evaluations.
Seymours trial, originally scheduled for August 2004, did not begin until August 2005, in large measure because of delays Seymour requested, as we have already discussed in footnote 3, ante. Neither expert prepared an updated evaluation for the purposes of testifying at trial. Instead, Dr. Clipson testified that the night before he testified, he reviewed Seymours medical records through March 2005 that the prosecution supplied to him. Similarly, Dr. Korpi testified that on the same day that he testified, he reviewed records for the most recent four months of Seymours stay at Atascadero. When Seymours counsel asked Dr. Korpi if his opinion regarding appellants inability to control his behavior was "current," meaning "todays date, not 2003," Dr. Korpi replied, "Thats why I looked at the records up to the present. Yes."
Seymour is correct that each took into account the circumstances of Seymours convictions and refusal to participate in sex offender treatment at Atascadero, but they did so in light of their conclusion that he suffered from a lifelong mental disorder that he potentially could learn to control with proper sex offender treatment, but which could not be cured. Each expert considered Seymours sex offenses because his actions revealed behaviors and patterns that were relevant to the paraphilia diagnosis and, given their view that paraphilia is a lifelong disorder, Seymours current condition and dangerousness. Dr. Clipson, for example, considered it relevant that Seymour had been sexually aroused and ejaculated in the course of his sex offenses, thought Seymours behaviors indicated he engaged in extensive planning and rehearsal fantasies, and found it relevant that Seymour had stated in 2004 that he had followed his victims. Dr. Korpi reviewed Seymours sex offenses, and found indications that Seymour could not help himself, including his commission of a sex offense while on parole.
Seymour had twice completed the first phase of a five phase cognitive behavior treatment program for sex offenders at Atascadero, but had not gone beyond that point.
Furthermore, each expert considered Seymours good behavior, but testified why this behavior was not persuasive evidence that Seymour had control over his mental disorder. Their explanations included testimony about the lifelong nature of his disorder and how he acted upon it to commit his sex offenses, including through rehearsal fantasies that he could not engage in while in prison or at the hospital, and the indications that he could not help himself. Dr. Clipson, noting that Seymour had committed a sex offense previously while on parole, stated, "Hes cooperative while hes locked up, but hes not so cooperative when hes out in the community. Thats kind of an important point there." Dr. Korpi summarized his views as follows:
"Paraphilia is like alcoholism. Once you have the disorder, youve got it forever. You can be a dry alcoholic, but you still—we still call you an alcoholic.
"We see sex offenders the same way. . . . Its chronic. It doesnt go away. He cannot—we can teach him not to drink. We can teach him not to do it, but the disorder theoretically exists independent of—I mean, if he raped yesterday, and I cant see it today, Im not going to say hes not a rapist.
"The time doesnt have a—the time between diagnosis and behavior is irrelevant."
Each expert also considered Seymours participation in certain groups, such as anger management, at Atascadero. Each found the effects of such participation wanting in light of his paraphilia diagnosis and Seymours failure to undergo treatment that dealt specifically with that sex disorder. Dr. Clipson indicated that a February 2005 report included comments that Seymour "had little practical understanding of his risk for reoffense," noted that Seymour had been urged to attend sex offender treatment, and indicated that he had been invited but declined to attend a 30-day team meeting, at which a professional team discussed with a patient their judgment about a treatment course. Dr. Korpi indicated that Seymours participation in other groups was not a substitute for sex offender treatment, and that studies indicated such treatment had some significant success.
Each expert took other matters into account as well. Clipson was concerned that Seymour was blaming his offenses on post traumatic stress disorder. He also testified that paraphilia was rare among rapists, making it an "extremely significant" risk factor, and was concerned that Seymour had no relapse prevention plan or social support, and would not be supervised if released. Dr. Korpi testified that he had considered and rejected the contention that Seymour had raped because of post-traumatic stress disorder, and stated his reasons.
Finally, each expert used certain risk assessment tools to evaluate the likelihood of Seymours reoffending. Dr. Clipson used two risk assessment tools, the static 99 and Rapid Risk Assessment Measure (RRASPR), a subset of the Static 99. Based on the Static 99, which looked at 10 factors that were "the most powerful predictor of sexual recidivism, he concluded that Seymour was in a high risk group. Dr. Korpi used four assessment measures, the Static 99, M-SOST-R, SORAG, and RRASOR, all of which placed appellant at a high risk of reoffending.
As is apparent from this review, Seymour, rather than present important, recurrent issues, simply asks that we weigh the evidence of his current condition that was presented below. We decline to do so.
For this same reason, we find no reason to make an exception to the mootness doctrine regarding Seymours argument, made in his appellate papers, that the experts evidence was insufficient because they relied on "stale" evaluations that were more than a year old. Seymour argues "[b]y not updating an evaluation the prosecution runs the risk of presenting insufficient evidence as to the currency of a subjects [sic] mental state." He points out that our Supreme Court noted in the course of determining that a prosecutor was entitled to have an updated evaluation prior to trial under the newly enacted section 6603, subdivision (c), that evaluations that had been prepared more than a year prior to trial, " `at the initial commitment stage would not reflect the [petitioners] current medical condition at a subsequent stage, well more than a year later." (Albertson v. Superior Court (2001) 25 Cal.4th 796, 802.) The Albertson court also favorably quotes from Peters v. Superior Court (2000) 79 Cal.App.4th 845, 850 (Albertson, at p. 802), which rejected the argument that evaluations used in an initial commitment proceeding could also be used in a recommitment proceeding, and in doing so stated that "the use of potentially stale reports subverts the manifest intent of the SVPA—the state must prove that the party suffers from a currently diagnosed mental disorder which predisposes him to engage in sexually violent behavior." (Peters v. Superior Court, supra, at p. 850.)
Seymours argument does not present important recurrent issues. As Seymour concedes in his reply brief, although the prosecutor is entitled to seek updated evaluations from the DMH pursuant to section 6603, subdivision (c)(1), if he or she "determines that updated evaluations are necessary in order to properly present the case for commitment" (§ 6603, subd. (c)(1)), he or she is not required to do so. Nothing in the opinions he cites prevents the prosecution from presenting experts whose testimony is based on both an initial evaluation performed more than a year before trial and their recent review of additional medical records. Such was the case here. Seymour, while he argues that the experts made errors in their testimony about his present circumstances, does not and cannot argue that the experts testimony was stale. In essence, Seymour is again asking us to weigh the evidence presented below, which we again decline to do.
C. Seymour Forfeited His Current Mental Disorder Claim
Seymours argument that the prosecution did not present sufficient evidence that he suffered from a current mental disorder also does not present important, recurrent issues because the issue is plainly governed by the holding in People v. Sumahit (2005) 128 Cal.App.4th 347 (Sumahit). In Sumahit, as here, the defendant refused to be interviewed by the prosecutions experts. In rejecting the defendants claim that the evidence was insufficient because it was not based on evidence that he currently suffered from a diagnosed mental disorder that affected his ability to control his sexually violent behavior, the court stated, "we cannot overlook the significance of defendants refusal to be interviewed by either of the states experts. . . . A sex offender cannot deny the state access to the workings of his mind and then claim a lack of proof that he has a `current psychological disorder." (Id at p. 353.) The defendant, by his refusal to be interviewed by the states experts, "forfeited the claim that the state did not prove that he was currently dangerous." (Id at p. 354.)
Seymour argues that we should not follow the holding of Sumahit, supra, 128 Cal.App.4th 347, claming that it violates his due process rights by shifting the burden away from the prosecutions burden of proving that he meets the SVP criteria. However, the Sumahit court expressly rejected this argument:
"Defendant also contends that our pronouncement violates due process and improperly shifts the burden of proof because it compels him to participate in an interview which could furnish the state with evidence that may be used against him. He misstates our holding. We do not require defendant to consent to be interviewed by the states evaluators as a condition for obtaining his release. We merely say that he cannot have it both ways: He cannot bar the state from examining his current mental condition and preserve a claim on appeal that there was insufficient evidence of his current dangerous propensities to support an SVP finding." (Sumahit, supra, 128 Cal.App.4th at p. 354, fn. 3.)
Thus, the holding of the court in Sumahit, does not shift the burden from the prosecution at trial. It simply holds that a defendant cannot argue on appeal that the evidence below was insufficient as to his mental condition if he prevents the state from obtaining the very evidence that he claims is missing.
In short, we dismiss this appeal as moot and refrain from further addressing the issues Seymour has raised because none of his issues are likely to recur while evading appellate review, nor do they involve matters of public interest. (Cheek, supra, 25 Cal.4th at pp. 898, 903.)
Seymour also argues on appeal that the prosecutor engaged in misconduct in his closing argument because the prosecutor purportedly urged the jury to use Seymours access to the legal system against him by stating that Seymour, rather than choosing a therapy strategy had chosen a legal strategy, apparently referring to Seymours filing of a federal habeas corpus writ contending that he was being held illegally at Atascadero pursuant to the SVPA. Seymour does not argue that this issue presents important, recurrent issues, and we conclude that it does not.
DISPOSITION
This appeal is dismissed as moot.
We concur:
Kline, P.J.
Richman, J.