P. v. Wright

Filed 2/9/07  P. v. Wright CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of Riverside County.  Carl E. Davis, (Retired judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.)  Affirmed.

            Chris Truax, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Ronald A. Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.

            Defendant George Francis Wright appeals from an order of recommitment after a jury determined he remains a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA).  (Welf. & Inst. Code, § 6600 et seq.)^[1]

            Defendant challenges the order on the ground the People failed to prove defendant suffered at least two qualifying convictions.  Defendant further contends that the trial judge improperly acted as an advocate for the prosecution and committed prejudicial error by allowing the prosecution's experts to testify regarding legal issues.

            We conclude defendant is collaterally estopped from contesting for the first time in the instant SVP proceedings the two predicate convictions.  As to defendant's other contentions, we conclude there was no prejudicial error and affirm the judgment.

1.  Factual and Procedural Background

            On October 7, 2003, the People filed a petition seeking to recommit defendant to the Department of Mental Health as an SVP within the SVPA.  The trial court found probable cause for the recommitment petition.  In September 2005, the jury returned a verdict finding defendant to be an SVP.  The court accordingly ordered defendant committed to the State Department of Mental Health for treatment in a secured facility for two years, from November 12, 2003, until November 12, 2005.

            Defendant's two predicate offenses the court relied on in committing him as an SVP occurred in 1968 and 1989.  The incident in 1968 involved defendant fondling a 10-year-old boy on a boat.  The 1989 incident involved defendant digitally penetrating an 11-year-old girl while living at the girl's home.  Defendant pled guilty to the 1989 offense.  The record is unclear as to whether defendant pled guilty to the 1968 offense.

            At the recommitment trial, the People's three experts, Drs. Owen, Korpi, and Starr, agreed that defendant suffered from pedophilia and schizophrenia.  The experts also found that defendant was likely to reoffend and that he met the criteria for commitment as an SVP.

            Defendant's expert, Dr. Jones, agreed defendant suffered from pedophilia but concluded there was a low probability defendant would reoffend because he was 66 years old and suffered from severe health problems, including emphysema, diabetes, and osteoporosis.  Dr. Jones testified that the risk of sexual reoffense drops dramatically with age, particularly after the age of 60.

            At the close of the prosecution's case, defendant moved to dismiss the recommitment petition on the ground the People failed to prove that defendant had two qualifying convictions.  Defendant argued that since the 1968 case was dismissed on speedy trial grounds, the trial court could not rely on the offense as a qualifying conviction.

            After carefully considering the record and listening to lengthy argument on the matter, the trial court denied defendant's motion to dismiss, concluding that defendant must have initially pled guilty to the 1968 offense, before the court found he was an MDSO (mentally disordered sex offender) in October 1968.  After reviewing the record, transcript of the 1968 proceeding, and case law, including In re Krieger (1969) 272 Cal.App.2d 886 (Krieger), the trial court concluded that under the doctrines of res judicata and collateral estoppel defendant was barred from challenging the 1968 offense since the court in the previous 1999 commitment hearing and recommitment hearing in 2001 found that the 1968 offense qualified as predicate convictions under the SVPA.

            During the instant recommitment trial, the court instructed the jury that it was to find that defendant had been convicted of the 1968 and 1989 offenses, and the jury was to determine the factual issue of whether defendant had committed substantial sexual conduct.  At the conclusion of the trial, in accordance with the jury verdict, the trial court ordered defendant recommitted as an SVP based on the 1968 and 1989 offenses.

2.  Challenge to the 1968 Predicate Conviction

            Defendant contends the trial court erred in denying his motion to dismiss the SVP petition.  He claims the court should have granted the motion on the ground the 1968 offense did not qualify as a predicate conviction.

A.  Mootness

            The People argue that defendant's appeal is moot because defendant's two-year commitment period, stemming from the order which is the subject of this appeal, expired on November 12, 2005.  The People thus urge this court to dismiss defendant's appeal.  We shall not do so because the issues raised in this appeal are likely to recur while evading appellate review.  (People v. Cheek (2001)  25 Cal.4th 894, 897.)  This court therefore exercises its discretion to decide the issues for the guidance of future proceedings rather than dismissing the case as moot.

B.  1968 Offense and MDSO Proceedings

            Defendant argues the 1968 offense, in which defendant molested a 10-year-old boy, did not qualify as a predicate offense under the SVPA since defendant was never convicted of the 1968 offense.  Defendant did not raise this objection until the recent SVP recommitment hearing in 2005, over 36 years after the 1968 offense and related MDSO finding.

            Section 6600, subdivision (a)(2)(G) provides that â€