P. v. Zavala

Filed 7/24/07 P. v. Zavala CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge.

Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Mark Andrew Zavala contends the trial courts determination that he is a sexually violent predator was not supported by substantial evidence. As we conclude the case is moot, we will dismiss the appeal.

FACTUAL AND PROCEDURAL SUMMARY

On August 4, 1983, Zavala pled guilty to two counts of committing a lewd and lascivious act on a child under the age of 14 years, violations of Penal Code section 288, subdivision (a). The victims were his 9- and 11-year-old nieces. Zavala fondled the girls breasts and vaginal areas and penetrated the 11-year-old with his penis. As a result of this plea, Zavala was committed to the California Youth Authority for a term of eight years.

On March 13, 1996, Zavala pled guilty to violating Penal Code section 288, subdivision (a). The 12-year-old victim referred to Zavala as her boyfriend and admitted having had sexual intercourse with Zavala. The victim also acknowledged knowing that Zavala was having intercourse with other young girls. Zavala was sentenced to a term of eight years in state prison for this offense.

On February 11, 2003, a petition to commit Zavala as a sexually violent predator was filed. Zavala admitted the allegations of the petition and was ordered committed for a period of two years.

A petition for recommitment was filed on December 2, 2004. Zavala waived his right to a jury, and a court trial commenced on April 24, 2006.

Dr. Shoba Sreevivasan, a psychologist, performed a clinical evaluation of Zavala. When Sreevivasan attempted to interview Zavala, he refused to participate after about 10 minutes. Because Sreevivasan was unable to complete an interview of Zavala, she relied upon the records from Atascadero State Hospital (ASH), where Zavala was committed, and probation, court, and incarceration records from Zavalas prior convictions.

Sreevivasan determined that Zavala had been convicted of sexual offenses in 1984 and 1996. There were three victims, ranging in age from 9 to 12. Sreevivasan also determined that Zavalas offenses included fondling, vaginal penetration, touching of the breast area, and sexual intercourse with at least one victim.

Sreevivasan diagnosed Zavala as a pedophile. She reached this diagnosis based upon his sexual activity with prepubescent girls spanning a period of more than six months, meaning the behavior was not transitory. His pedophilia was aggravated by his problem with alcohol and his antisocial personality disorder.

While at ASH, Zavala participated in programs such as Alcoholics Anonymous, but declined to participate in any sex offender treatment. Sreevivasan opined that participation in sex offender treatment could reduce the risk of reoffending. She noted that Zavala had a history of making conflicting statements about the offenses in that he had both admitted and denied committing the offenses.

Sreevivasan evaluated Zavala based upon several different methods, including the Static-99, SORAG, Meta Analysis, and SVR-20. All of the assessment tools classified Zavala as having a high risk of reoffending. Sreevivasan considered multiple factors in developing her opinion that Zavala was likely to reoffend, including (1) a history of sexual arousal to children; (2) the commission of sexual offenses, both as a juvenile and an adult; (3) the failure to participate in any sex offender treatment; (4) poor psychosocial adjustment; (5) the failure to cooperate under supervision, as demonstrated by his parole violations and rules violations while incarcerated at ASH; and (6) the inability to self-regulate and manage his own risk factors.

Dr. Dawn Starr, another psychologist, also evaluated Zavala. When Starr attempted to interview Zavala on September 13, 2004, he declined to be interviewed. Starr based her evaluation of Zavala on the records from ASH and the Department of Corrections, his family background, sexual history, history of substance abuse, psychiatric treatment, medical evaluations, and probation reports.

Starr diagnosed Zavala as having pedophilia with an antisocial personality disorder. Starr concluded Zavala was likely to reoffend. She opined that Zavala could not be treated safely in a community setting. Starr considered Zavala to be a predatory sex offender.

Dr. Theodore Donaldson, a psychologist, testified for Zavala. Donaldson opined that Zavala posed some risk of committing future offenses, but could not quantify the risk. Donaldson was of the opinion that there was insufficient information to diagnose Zavala as a pedophile, even though Zavala had sex with three different minors at three different stages of life. Donaldson testified that he believed Zavalas crimes were opportunistic, rather than the result of a sexual compulsion. Donaldson also noted that Zavala had not been written up for sexual behavior while at ASH and concluded there was little evidence that would indicate Zavala could not control his behavior.

Donaldson concluded Zavala did not have any mental disorders. Because Zavala did not have a mental disorder, Donaldson opined that Zavala could not be at risk of reoffending due to a mental disorder.

On April 25, 2006, the trial court found the allegations of the petition to be true beyond a reasonable doubt. Zavala was recommitted for a period of two years. The two-year recommitment period commenced on March 17, 2005.

DISCUSSION

Zavala contends the evidence was insufficient to sustain the petition. Specifically, he argues there was no substantial evidence that (1) his prior convictions were for sexually violent offenses, and (2) he was unable to control his behavior. The problem, however, is that the two-year period of commitment clearly has expired.

Although a case may originally present an existing issue , if, before decision is reached, it has, through acts of the parties or other cause, lost that existent character, it is rendered moot and may not be considered. [Citations.] (National Assn. of Wine Bottlers v. Paul (1969) 268 Cal.App.2d 741, 746.) Thus, [w]hen it appears that a controversy from which an appeal has been taken no longer exists, it is the duty of the court to dismiss the appeal. (Bollotin v. Workman Service Co. (1954) 128 Cal.App.2d 339, 342.) A case is moot when any ruling by this court can have no practical impact or provide appellants effectual relief. (Downtown Palo Alto Com. for Fair Assessment v. City Council (1986) 180 Cal.App.3d 384, 391.)

This court cannot provide any relief on appeal from a commitment order that already has expired. If the commitment order has expired and no petition for recommitment has been filed, then Zavala has been released. If a subsequent petition for recommitment has been filed, then, even if we were to reverse the commitment order appealed from, Zavala would not be released. He would be confined pursuant to a subsequent commitment order, which is not before us in this appeal. Also, the evidence adduced at the hearing on any subsequent petition, which may differ from that adduced in the hearing on the petition that is the subject of this appeal, will determine the outcome of the subsequent petition.

Because the term of the commitment order appealed from has expired, a decision on the merits of this case can have no practical impact or provide appellant[] effectual relief. (Downtown Palo Alto Com. for Fair Assessment v. City Council, supra, 180 Cal.App.3d at p. 391.)

We, however, have the inherent power to retain a case and decide it on its merits, even though it is moot, where the issues are important and of continuing interest. (Burch v. George (1994) 7 Cal.4th 246, 253, fn. 4; Honig v. Doe (1988) 484 U.S. 305, 317-323 (maj. opn. of Brennan, J.; see Honig, at p. 330 (conc. opn. of Rehnquist, C.J.).) [I]f a pending case poses an issue of broad public interest that is likely to recur, the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot. (In re William M. (1970) 3 Cal.3d 16, 23; see, e.g., Liberty Mut. Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715-716; County of Madera v. Gendron (1963) 59 Cal.2d 798, 804.)

We are not persuaded to exercise this discretion here. In our view, the expert testimony and other evidence that supports a commitment order is specific to each trial and subject to change at each subsequent trial. Zavala and others similarly situated have the ability to challenge subsequent commitment petitions expeditiously by way of a petition for writ of habeas corpus challenging the findings at the probable cause hearing. (Bagration v. Superior Court (2003) 110 Cal.App.4th 1677, 1689; People v. Talhelm (2000) 85 Cal.App.4th 400, 404-405.) They also have the right to appeal an adverse finding after a trial. So, we think there is nothing to be gained by addressing the merits of this appeal.

DISPOSITION

The appeal is dismissed.

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CORNELL, J.

WE CONCUR:

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WISEMAN, Acting P.J.

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HILL, J.

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