P. v. Wilson

Filed 1/31/07  P. v. Wilson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

            APPEAL from an order of the Superior Court of Kern County.  Gary T. Friedman, Judge.

            Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Stan Cross, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

            This is an appeal from an order committing appellant William Albert Wilson as a sexually violent predator (SVP) pursuant to Welfare and Institutions Code section 6600 et seq. (the SVP law).  The commitment order from which this appeal is taken expired on December  13, 2005.  Accordingly, the appeal is moot.  (People v. Hurtado (2002) 28 Cal.4th 1179, 1186.)  We decline to exercise our discretion to decide the issues presented by appellant.  (See ibid.)  To the extent appellant seeks to raise constitutional objections to the SVP law, those issues (as appellant acknowledges) uniformly have been resolved against his position by other California courts, including our Supreme Court.  To the extent appellant contends his trial attorney was constitutionally ineffective, we conclude the underlying instance of claimed ineffectiveness raises neither a recurring issue nor one involving important public policy.  Accordingly, we will dismiss the appeal.^[1]

Facts and Procedural History

            Appellant was committed as an SVP on December  13, 2001.  As that two-year commitment neared its end, the Kern County District Attorney's office filed a petition for a new two-year commitment.  After jury trial on that petition, appellant was committed as an SVP for a period beginning December  13, 2003, and ending December  13, 2005.  He filed a timely notice of appeal.

Discussion

            Appellant contends the SVP law constitutes a criminal law, violates state and federal equal protection principles, and denies due process of law.^[2]  These contentions repeatedly have been rejected by the courts of California.  (See, generally, People v. Williams (2003) 31 Cal.4th 757, 792; Hubbart v. Superior Court (1999) 19 Cal.4th 1138.)  As a result, there is no need to again address, and reject, these claims in this moot appeal. 

            Appellant also contends his trial attorney provided constitutionally ineffective assistance of counsel by representing to him that the jury would be instructed appellant's failure to testify could not be used against him, and apparently did not revisit the issue with him after the trial court indicated it would not give the relevant instruction.  There are many apparent difficulties with appellant's claim, not the least of those being the issue of prejudice.  (See Strickland v. Washington (1984) 466 U.S. 668, 688.)  However, because the SVP commitment in question has expired, reversal of the commitment order for a new trial based on ineffective assistance of counsel would not result in any benefit to appellant.

Disposition

            The appeal is dismissed as moot.

__________________________

VARTABEDIAN, Acting P. J.

WE CONCUR:

__________________________________

CORNELL, J.

__________________________________

DAWSON, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1]           We deny respondent's motion for judicial notice, consideration of which previously was deferred.

^[2]           Appellant makes two due process claims.  First, he says the SVP law permits deprivation of liberty based upon less than a preponderance of the evidence.  Second, he says the law fails to require that the jury find his dangerousness results from a volitional impairment.