P. v. King
Filed 4/30/07 P. v. King CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM KING, Defendant and Appellant. | B172294 (Los Angeles County Super. Ct. No. ZM 003757) |
APPEAL from a judgment of the Superior Court of Los Angeles County. Charles G. Rubin, Judge. Dismissed.
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Chris Truax, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer, Erika D. Jackson, Chung L. Mar and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found William King to be a sexually violent predator (Welf. & Inst. Code, 6600 et seq.) and the court civilly committed him to a secure facility for two years. King appealed, but his term of commitment ended before the record on appeal was complete and his opening brief was filed. King contends that (I) because of the delays in completing the record, we should reverse the judgment, dismiss the proceedings with prejudice, and hold his appeal is not moot despite his having completed his commitment. He also contends that the court erred in (II) allowing the prosecutions experts to rely on hearsay reports of his most recent offenses; (III) allowing the experts to offer legal opinions; and (IV) denying him his right to self-representation at trial. In addition to disputing Kings contentions, the Attorney General moved to dismiss Kings appeal as moot, arguing that King caused much of the delay in completing the record and raised no recurrent issues that otherwise would evade review. We ordered the motion to be considered concurrently with the appeal. We agree with the Attorney General that Kings appeal is moot and dismiss it.
FACTS
King was convicted of three forcible sex crimes: 1) attempted rape in 1967; 2) rape in 1983; and 3) attempted rape of a different woman also in 1983. The 1983 crimes were committed shortly following his release from prison after serving the sentence for the 1967 conviction. In 1999, within a few days of his release from prison after serving his sentence for the 1983 convictions,[1]King assaulted and attempted to rape an elderly woman, and then attempted to rape the same woman again a week later.[2] Rather than filing new criminal charges, the prosecution alleged the 1999 offenses as parole violations which were found true at a contested hearing, after which King was returned to prison. On April 21, 2000, before Kings scheduled release from prison, the prosecution filed the instant petition seeking to have him declared a sexually violent predator and civilly committed, based on the 1967, 1983, and 1999 sexual assaults. Because of numerous hearings, many of which involved Kings alternating between representing himself and being represented by appointed counsel and filing numerous motions challenging various conditions of his confinement, the probable cause hearing was not held until 2002 and the petition was not tried until 2003. On November 18, 2003, the jury found King to be a sexually violent predator and the court committed him for two years. On December 3, 2003, King filed a timely notice of appeal.
On March 20, 2004, we received the original clerks and reporters transcripts. On March 29, we notified King that the record on appeal had been filed, and on April 19, we appointed counsel to represent him. On June 23, pursuant to counsels request, we relieved him and appointed current counsel. On August 30, 2004, King filed a motion, which we granted, to augment the record to include the reporters transcripts of the 2002 probable cause hearing and the 2003 jury selection. On October 20, 2004, we received an additional four-volume reporters transcript. On November 17, we received a second augmentation request from King asking for additional minute orders not included in the materials filed with the original record and for copies of psychological evaluations. We granted the request and stayed briefing pending the augmentation.
On March 8, 2005, we received an additional one-volume clerks transcript and a two-volume reporters transcript. On May 10, King sought a further augmentation of additional undesignated minute orders and an extension of time to file his opening brief. On July 6, we denied the request without prejudice to Kings renewing it once he listed the specific dates of the orders he sought. For reasons not explained, the trial court clerk initially could not find the minute orders, and further delay followed until King located sufficient records to supply the dates of the desired orders. On September 13, 2005, while awaiting production of the additional records, we granted Kings request to extend the time to file his opening brief. On March 21, 2006, we received a one-volume clerks transcript and on June 27, 2006, a one-volume reporters transcript.[3] On July 10, King filed a motion for summary reversal based on the delay in completing the appellate record. The Attorney General filed opposition and we summarily denied the motion on August 10. King filed his opening brief on September 14, 2006.
In his motion to dismiss filed concurrently with his response brief, the Attorney General filed documents disclosing that on November 1, 2005, shortly before King was scheduled to be released from his commitment, the prosecution filed a new petition seeking to declare King a sexually violent predator and extend his commitment, and that on September 26, 2006, the court found probable cause existed to support the petition, trial of which currently is pending.
DISCUSSION
A criminal defendants appeal is not made moot by his completing his sentence because he is entitled to an opportunity to clear h[is] name and rid h[im]self of the stigma of criminality[,] and the continued existence of his criminal conviction may have prejudicial collateral future consequences, such as increasing the maximum sentence in a new case. (People v. DeLong (2002) 101 Cal.App.4th 482, 484, 486-489, italics added; People v. Lindsey (1971) 20 Cal.App.3d 742, 744-745; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, 164, pp. 411-412.) On the other hand, an appeal from a civil commitment as a sexually violent predator becomes moot when the defendant completes the commitment period. (People v. Hurtado (2002) 28 Cal.4th 1179, 1185-1186; People v. Cheek (2001) 25 Cal.4th 894, 897-898 [cases decided within the commitment period by courts of appeal became moot when the Supreme Court could not issue its opinions until after the period expired].) An appellate court may, however, consider such an appeal if it raises issues under the Sexually Violent Predator Act (SVPA) likely to recur but evade review. (Ibid.)
We agree with the Attorney General that King failed to raise any issues likely to recur but evade review, mooting his appeal. King argues that the failure to complete the record earlier itself entitles him to reversal and dismissal and is a recurrent issue likely to evade review. We disagree. The delay in this case is not a recurring issue because King has not shown that it was systematic or that it is likely to recur for any other reason. The delays were attributable to (1) changing appellate counsel, (2) some normal continuances, (3) the need to assemble a large record including numerous minute orders and transcripts generated over a three-year period involving unusually lengthy and complicated trial court proceedings, and (4) an unexplained but apparently innocent delay by the trial court clerk in locating and reproducing documents not included in the originally filed record. We also reject Kings argument that because the Attorney General argued in his opposition to Kings motion for summary reversal that King had failed to show his appeal was moot, the Attorney General is estopped from seeking dismissal of the appeal on the ground of mootness. In order for a party to be estopped from presenting an argument, that partys earlier contrary position must have been adopted by the courts ruling. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.) Contrary to Kings argument, our summary denial of the motion did not adopt any of the Attorney Generals arguments, and thus estoppel does not apply. Further, none of the three substantive issues King raises are unique, all already have been settled in other published cases, and King does not claim otherwise.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
ROTHSCHILD, J.
We concur:
MALLANO, Acting P.J.
VOGEL, J.
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[1] Before Kings 1999 release from prison, the prosecution sought to have him declared a sexually violent predator. Because one of the two required mental health professionals opined that King did not meet the criteria, the prosecution was unsuccessful.
[2] King has remained in custody since his arrest shortly after the 1999 offenses.
[3] These final two volumes included a variety of minute orders nearly all of which involved various motions by King changing his representation from appointed counsel to self-representation, and litigating many motions challenging the conditions of his confinement, including medical care, access to the law library, and release of pro per funds. The only substantive records contained in these final two volumes were the minute orders for the 2002 probable cause hearing, reporters transcripts of which had been lodged long before. King did not raise any issues relating to any of these hearings.
