P. v. Parker
Filed 3/17/06 P. v. Parker 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
| THE PEOPLE, Plaintiff and Respondent, v. KURT ADRIAN PARKER, Defendant and Appellant. |
F046235
(Super. Ct. No. SC045518A)
OPINION |
APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Jr., Judge.
Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, John G. McLean and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
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STATEMENT OF THE CASE
On July 18, 2003, the Kern County District Attorney filed a notice of intention to file a petition for commitment of appellant under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.). On July 22, 2003, the superior court granted the district attorney a continuance to prepare the petition.[1]
On July 24, 2003, appellant appeared in open court and denied the allegations of the petition.
On July 29, 2003, appellant moved to dismiss the petition on the ground it was defective and the court granted the district attorney leave to file an amended petition. On the same date, the district attorney filed a supplemental petition to extend appellant's commitment as a sexually violent predator.
On August 12, 2003, the district attorney filed a brief in the hearing on probable cause to commit appellant as a sexually violent predator.
On August 20, 2003, the court conducted a contested hearing and found probable cause to believe appellant was likely to engage in sexually violent predatory criminal behavior upon his release. The court set the case for jury trial on November 3, 2003.
On October 29, 2003, the court continued the trial date to December 15, 2003 on motion of appellant.
On December 12, 2003, the court continued the trial date to February 2, 2004 on motion of appellant.
On January 29, 2004, the court continued the trial date to March 15, 2004 again on motion of appellant.
On March 15, 2004, jury trial commenced in superior court.
On March 22, 2004, the jurors informed the court they were unable to reach a verdict and the court declared a mistrial.
On March 23, 2004, the court reset the trial for May 17, 2004.
On May 14, 2004, the court continued the trial date to August 16, 2004 on appellant's motion.
On August 16, 2004, jury trial commenced.
On August 23, 2004, the jury returned a verdict finding appellant to be a sexually violent predator. The court then denied appellant's motion for judgment notwithstanding the verdict, and committed appellant to the Department of Mental Hygiene at Atascadero State Hospital for the maximum term of two years, said commitment to end on August 22, 2006.
On August 26, 2004, appellant filed a timely notice of appeal from the judgment upon jury verdict and the denial of his motion for judgment notwithstanding the verdict.
STATEMENT OF FACTS
Facts of the Underlying Crimes
On April 17, 1991, the Kern County District Attorney filed an information in superior court charging appellant inter alia with multiple counts of lewd and lascivious conduct upon one A.S. and one count of lewd and lascivious conduct upon Z.D., both children under the age of 14 (Pen. Code, § 288, subd. (a)). On June 14, 1991, appellant was convicted of all nine counts.
The superior court admitted the reporter's transcript of the criminal trial testimony of A.S. and Z.D. in the instant proceeding. At the 1991 trial, Z.D. testified that appellant had worked with his mother, he and appellant became friends, and appellant ultimately began to baby-sit him. After knowing appellant for approximately one year, appellant gave Z.D. alcohol on about five or six occasions. On one occasion, Z.D. was lying on a couch. Appellant began to rub his feet and legs and then began to masturbate Z.D.
At the 1991 trial, A.S. testified appellant had worked for the management of the apartments in which he was residing during February of 1990. Appellant had asked A.S. to pass out flyers to residents on a few occasions, became friendly with A.S. and ultimately invited A.S. and one of his friends to his home. A few months later, appellant moved into the apartment complex where he worked and where A.S. resided. A.S. said they became good friends. Appellant would take A.S. and his friends to the arcade, show them a pornographic cartoon video, and offer them alcoholic beverages on a regular basis. According to A.S., four other male minors would regularly visit appellant's apartment, drink alcohol, and watch the pornographic cartoon.
During the week of July 4th, A.S. was not feeling well. Appellant had him lie down on a couch, began rubbing his feet and legs, and then lowered his pants and underwear. Appellant began to orally copulate A.S. and lick his â€
