Opinion
A108919
12-8-2006
THE PEOPLE, Plaintiff and Respondent, v. JOHN SUNDQUIST, Defendant and Appellant.
Appellant John Sundquist appeals from a jury finding and judgment that extended his civil commitment to Atascadero State Hospital pursuant to Welfare and Institutions Code section 6600 et seq. For the reasons stated below, we dismiss Sundquists appeal as moot.
Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.
BACKGROUND
Sundquist pled guilty to the charge of rape for a 1979 incident and was sentenced to Fort Leavenworth Prison, where he was incarcerated until his release in 1984. He was then convicted and incarcerated for rape and sodomy involving two separate incidents, each occurring within months of his release from Leavenworth in 1984.
The People filed a petition in July 2001 in Humboldt County Superior Court pursuant to the Sexually Violent Predator Act (SVPA), section 6600 et seq., to commit Sundquist as a sexually violent predator (SVP). A jury found the allegations in the petition to be true, and the court ordered Sundquist committed in 2002 for two years to Atascadero State Hospital pursuant to section 6604.
Sundquist has requested that this court take notice of its prior unpublished opinion in People v. Sundquist, case No. A099104, which request we hereby grant.
A petition was filed in March 2004 to recommit Sundquist as an SVP for another two years. A jury found the allegations of the petition to be true, and the court ordered a two-year extension of Sundquists commitment, starting on April 25, 2004.
Sundquist subsequently filed a timely notice of appeal. Sundquists challenged term of commitment expired in April 2006, during the pendency of this appeal. The parties provided additional briefing at our request as to whether this case should be dismissed as moot and, if so, whether we should decide any issues for the guidance of future proceedings. Sundquist stated in his supplemental brief that another petition has been filed seeking to extend his commitment for another two-year term.
DISCUSSION
Sundquist argues that the trial courts order and judgment must be reversed because the court erred by giving collateral estoppel effect to the 2002 jurys finding that he was an SVP, and by denying his request for a modification of a standardized jury instruction regarding his volitional control. We first turn to whether this appeal should be dismissed as moot in light of the expiration of the term of commitment that Sundquist challenges.
I. The Mootness Doctrine Applies Here
Before analyzing whether or not this matter is moot, we note that our task is complicated by the time frame outlined in the SVPA for extended commitment proceedings. The SVPA provides for civil commitment to the California Department of Mental Health (DMH) for a renewable two-year term of criminal defendants who, after serving their prison term, are found to be SVPs. (§§ 6604, 6605.) It provides for a jury trial to determine anew whether a person is an SVP, whether it is a commitment or extended commitment proceeding. (§ 6603; Butler v. Superior Court (2000) 78 Cal.App.4th 1171, 1179-1182; (People v. Munoz (2005) 129 Cal.App.4th 421, 429-430 (Munoz); see also § 6604.1, subd. (b) [stating that the "rights, requirements, and procedures set forth in Section 6603" apply to extended commitment proceedings.)
As a result of this time frame, it is apparent that some appeals have remained pending after the expiration of the challenged commitment term, particularly in light of inevitable delays caused for a variety of reasons in the course of preparing for trial and, if necessary, an appeal. We are acutely aware of the tension between our duty to refrain from offering our advice on moot matters and our discretionary duty to consider certain important matters that are capable of repetition and of evading review under such circumstances. We are also aware that other courts reviewing SVP matters have called on the Legislature to address this time frame and the delays in the process. Division One of this Appellate District stated recently: "Indications of widespread trial delays are in the record before us . . . . We call upon the Legislature to revisit the SVPA and impose a bottom-line, nonwaivable time limit on conducting the probable cause hearing after filing the SVP petition." (People v. Hayes (2006) 137 Cal.App.4th 34, 48-49 (Hayes).)
Similarly, the court in Litmon v. Superior Court (2004) 123 Cal.App.4th 1156 (Litmon), cited by Division One in Hayes, supra, 137 Cal.App.4th at pages 48-49, stated: "[T]here must be some limit to the length of time trial on an SVP petition can be delayed . . . `[s]urely the Legislature did not contemplate the lengthy delay which occurred here. . . . We recognize that the absence of specific time limits in the SVPA bespeaks a legislative intent to provide courts with much-needed flexibility in holding SVP trials. However, we also believe our trial courts need some guidance in how to manage their SVP case loads." (Litmon, at pp. 1171-1172.)
We note that the California electorate approved of Proposition 83 on November 7, 2006, which measure includes significant changes to the SVP commitment, recommitment, and review process. This is a particularly appropriate time for the Legislature to examine all SVP time frames in order to determine if further guidelines are necessary to ensure that matters are resolved before mootness questions become relevant. We respectfully call upon the Legislature to undertake such a review.
In the present case, we conclude that we should not make an exception to the mootness doctrine because the case does not present important and recurrent matters in light of recent case law about the collateral estoppel doctrine in SVP proceedings.
We have the authority to dismiss this appeal as moot, whether or not we exercise our discretion to address any of its merits for the guidance of future proceedings. Our Supreme Court considered a similar circumstance in People v. Cheek (2001) 25 Cal.4th 894 (Cheek), and dismissed that case as moot while addressing its merits. Cheek was committed for a two-year term to the DMH after he was found to be an SVP. (Id. at p. 897.) In 1998, the DMH, as required by section 6605, subdivisions (a) and (b), examined Cheeks mental condition and gave him written notice of his right to petition the court for conditional release pursuant to section 6608. (Cheek, at pp. 897-898.) Cheek did not affirmatively waive his right to petition for conditional release, thereby requiring the superior court to conduct a show cause hearing pursuant to section 6605, subdivision (b). The court, ruling solely on the basis of the written expert reports, found no change in Cheeks mental condition and ordered him to remain at Atascadero State Hospital for the duration of his two-year term of commitment. (Cheek, at pp. 897-898.) The issues on appeal were whether Cheek had the right to present oral testimony, including expert testimony, and to cross-examine the authors of adverse medical reports at the court hearing. (Id. at p. 903.)
The appellate court dismissed Cheeks appeal because his original two-year civil commitment under the SVPA expired while his appeal was pending (Cheek, supra, 25 Cal.4th at p. 898), which dismissal the Supreme Court affirmed. (Id. at p. 903.) The Supreme Court nonetheless exercised its discretion to discuss the merits of the case for the guidance of future proceedings because the issues Cheek raised were likely to recur while evading appellate review and involved matters of public interest. (Id. at pp. 898, 903; see also Costa v. Superior Court (2006) 37 Cal.4th 986, 994, 1030 [remanding the matter to the appellate court for dismissal as moot, but issuing an opinion in order to provide guidance for future cases].)
Similarly, in Hayes, supra, 137 Cal.App.4th 34, Division One of this court considered an SVPA case involving two successive extended commitment petitions, but refrained from ruling with regard to issues raised about the first petition because they were moot. (Hayes, at p. 44.) The first petition, or "Petition 1" as the court referred to it, had not yet proceeded to trial on the eve of the two-year extended commitment period. (Ibid.) The People filed a second petition to recommit the defendant for an additional two-year period; the trial court consolidated the petitions, conducted a trial, and then conducted a probable cause hearing on the second petition. (Ibid.) Division One, while considering whether the trial court made a prejudicial error in holding the probable cause hearing on the second petition after, rather than before, trial on that petition, specifically held that "[a]ny issue regarding Petition 1 is moot, because the two-year term that could have been imposed on that petition has now expired." (Id. at p. 52.)
Precedent also exists to determine the merits of this case if necessary to resolve an important, recurrent issue in SVP cases, even if the matter is moot. In People v. Hurtado (2002) 28 Cal.4th 1179, 1186 (Hurtado ), our Supreme Court considered whether or not the trier of fact at a commitment trial must find beyond a reasonable doubt that the petition respondent is likely to commit sexually violent predatory criminal acts under the SVPA. (Hurtado, at p. 1186.) The Supreme Court, relying in part on Cheek, supra, 25 Cal.4th 894, found that the case had become moot in light of the expiration of the subject commitment, but the court "retained it for decision because the issue it raises is recurrent—indeed, it is raised in virtually every SVPA trial and appeal—and the two-year limit on each commitment makes it likely that any appeal raising the issue would become moot before we decide it." (Hurtado, at p. 1186.) It affirmed the appellate courts ruling that the trial court had erred in failing to instruct the jury to determine if there were predatory acts, but that the error was harmless beyond a reasonable doubt. (Id. at pp. 1194-1195; see also Litmon, supra, 123 Cal.App.4th at p. 1167 [determining a technically moot issue regarding SVPA that presented an important question affecting the public interest that was capable of repetition and evading review].)
Sundquist argues that this case is not moot for a number of reasons. First, he cites the appellate courts decision to refuse to consider a mootness argument regarding an SVPA proceeding in People v. Ward (2002) 97 Cal.App.4th 631, 634. That case provides no support for Sundquists argument because the court chose not to consider the mootness argument, since it was predicated on the release of the defendant, and there was no evidence that this had occurred. (Ibid.)
Sundquist next argues that this case is not moot "because all future commitments will be traceable to the commitment order being appealed here." His argument is incorrect because each SVPA commitment proceeding is a separate proceeding which must be conducted with the same procedures as the original proceeding. (Butler v. Superior Court, supra, 78 Cal.App.4th at pp. 1179-1182.)
Sundquist cites both Ninth Circuit and state appellate case law for this proposition, but, as he acknowledges, these cases relate to somewhat different matters than what is before us. Jackson v. California Dept. of Mental (9th Cir. 2005) 399 F.3d 1069, 1075, addressed the issue of standing, not mootness. (Id. at p. 1075.) Similarly, People v. Williams (1999) 77 Cal.App.4th 436 and People v. Fernandez (1999) 70 Cal.App.4th 117 involve a different statutory scheme under Penal Code section 2960 et seq. regarding mentally disordered offenders.
Sundquist also points out that the Ninth Circuit has declined to dismiss as moot a habeas petition challenging an expired SVPA commitment, because constitutional challenges to SVPA commitments are capable of repetition in successive SVPA commitment proceedings, yet are likely to evade review due to the short duration of each SVPA commitment. Sundquist relies principally on Hubbart v. Knapp (9th Cir. 2004) 379 F.3d 773 (Hubbart ), in which the Ninth Circuit considered, and affirmed, the district courts denial of a habeas corpus petition by the first person confined under the SVPA. (Hubbart, at p. 775.) Hubbart argued that his confinement violated federal due process because the state had failed to follow its own rules in confining him under the SVPA. (Hubbart, at p. 779.) The Ninth Circuit first considered the governments argument that the case was moot because Hubbart was petitioning for habeas relief from an expired term of commitment, and was entitled in any event to a fresh evaluation of his current mental health and criminal predilection because each two-year term of SVPA commitment constitutes a new and distinct action. (Hubbart, at 777.) The Ninth Circuit held that Hubbarts habeas petition was not moot "because his claims were capable of repetition yet evading review." (Ibid.) The court reasoned that Hubbart had already been subject to a second SVPA commitment proceeding, in which he continued to make the same arguments about the constitutionality of the SVPA. (Hubbart, at pp. 777-778.) It also held that, "for purposes of determining mootness in connection with Californias repeating pattern of two-year commitments under the SVPA, a federal constitutional claim evades review if the challenged action expires before a federal appellate court has the opportunity to fully consider the allegation." (Hubbart, at p. 778.) The court determined that it was "almost certain" that a state detainee under the SVPA would be unable to exhaust state remedies and fully litigate a habeas petition in federal courts within two years. (Hubbart, at p. 778.)
The People argue that Hubbart, supra, 379 F.3d 773, was decided under the federal mootness doctrine, which, unlike Californias, does not require that the issue involved relate to an important matter of public interest. We are not persuaded that this is the case (see, e.g., Foster v. Carson (9th Cir. 2003) 347 F.3d 742, 746-748 [discussing cases in which the public interest was an important consideration in determining whether a matter was moot]). Indeed, the Ninth Circuit in Hubbart addressed issues that were important and likely to recur in other cases. (Hubbart, supra, at pp. 779-782 [addressing the legality of the petitioners custodial status at the time the commitment petition was filed, whether the state courts construction of the statute provided minimal procedural safeguards, and whether the statutory scheme violated equal protection].) Regardless, cases from the federal courts of appeal "provide persuasive rather than binding authority." (People v. Bradford (1997) 15 Cal.4th 1229, 1292.)
Sundquist also argues that the "inherent likelihood that a two-year commitment will expire before appellate review is concluded" violates his due process rights, citing a far-flung and unexplained string of cases discussing inapposite matters. (See, e.g., Evitts v. Lucey (1985) 469 U.S. 387, 405 [discussing due process in a matter challenging the constitutionality of a state courts dismissal of an appeal of a criminal conviction because of defendants lawyers failure to file a statement of appeal].) The fact that a particular case could be delayed beyond the two-year commitment term does not have a bearing on whether or not the case is in fact moot. As the United States Supreme Court has noted, "mootness, however it may have come about, simply deprives us of our power to act; there is nothing for us to remedy, even if we were disposed to do so. We are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong." (Spencer v. Kemna (1998) 523 U.S. 1, 18; see also In re Pablo D. (1998) 67 Cal.App.4th 759, 761 ["Obviously, we cannot rescind services that have already been received by the parents. Because we are unable to fashion an effective remedy, the appeal is moot"].)
Although the parties do not address waiver, we note that Sundquist caused significant delay in this matter by requesting four extensions of time to file his opening brief in this appeal, delaying its filing from June to October 2005, and, after time was extended for respondent, received one 20-day extension of time to March 7, 2006 for the filing of his reply brief. At least one court has held that a defendant waived a due process claim because of extensive delays he had caused. (Orozco v. Superior Court (2004) 117 Cal.App.4th 170, 179-180 [finding that the defendant, by never indicating he was ready for trial and failing to raise the timeliness of trial below, waived the issue of whether the delay in bringing the matter to trial violated his due process].)
Accordingly, we dismiss this appeal as moot for the reasons stated herein. (Cheek, supra, 25 Cal.4th at p. 898.)
II. Sundquists Appeal Does Not Raise Any Important, Recurrent Issue
Sundquist argues that even if we find his appeal to be moot, we should exercise our discretion to decide its merits because he raises important, recurrent issues. We disagree for the reasons discussed directly below.
A. Sundquists Collateral Estoppel Argument
Sundquist argues on appeal that the trial court violated his due process rights, denied him a fair hearing, and barred introduction of psychiatric evidence in support of his defense, relying for his argument principally on Munoz, supra, 129 Cal.App.4th 421, which was published after the trial of this matter. He complains that the trial court erred by giving collateral estoppel effect to the jury verdict in Sundquists 2002 SVPA commitment hearing and, by doing so, conclusively established that Sundquist was an SVP as of the date of the prior verdict, permitted the prosecutor to inform jurors that Sundquists SVP status as of 2002 had been determined to be true, and instructed Sundquists expert that he must accept the validity of the 2002 SVP evaluations of Sundquist and not challenge the 2002 jury verdict finding that Sundquist was an SVP.
1. Relevant Background
Prior to trial, Sundquist refused to be interviewed by the prosecutors expert witnesses, Drs. Scherrer and Alumbaugh, while consenting to an interview with his own expert witness, Dr. Glover. During a pre-trial in limine motion hearing, the prosecutor raised the issue of whether the Peoples expert witnesses could testify about other expert diagnoses in a prior commitment proceeding. In the course of doing so, she contended that it was misleading to the jury if it was not advised that this was an extended commitment proceeding because it would give false weight to Dr. Glovers opinion, and that it was necessary to let the jury know that "[i]ts not just Dr. Glovers opinion versus two state psychologists in this proceeding. But, in fact, its Dr. Glovers opinion versus four state psychologists and a jurys determination."
The prosecutor also argued that collateral estoppel principles applied regarding the prior proceedings findings. She relied on Turner v. Superior Court (2003) 105 Cal.App.4th 1046 (Turner), which held that the prosecution could not relitigate a finding in a prior commitment proceeding that the defendant was not an SVP at the time of his prior release. (Id. at p. 1060.)
After some argument, the court ruled that the jurys finding in the prior proceeding that Sundquist was an SVP at the time was "collateral estoppel" as to that issue, and that the defense was precluded from contending otherwise. However, the court would not allow the jury to know that this prior finding was by a previous jury.
In her opening statement, the prosecutor indicated that, pursuant to section 6600, Sundquist had been evaluated in June 2001 by two psychologists, Drs. Franks and Weiss, that the evaluators had reviewed relevant criminal and psychiatrist records, and had concluded that Sundquist suffered from "paraphilia" with non-consenting persons, which was a sexual deviance disorder, and that he was likely to reoffend if released. The prosecutor also stated that after the completion of this previous process, Sundquist had been sent to Atascadero for treatment in 2002 and had refused treatment for his disorder while there. At trial, Drs. Scherrer and Alumbaugh also testified that Sundquist suffered from paraphilia. Dr. Scherrer testified that the prior evaluations of Drs. Franks and Weiss had concluded that Sundquist was an SVP and that he was likely to reoffend because of his paraphilia.
Sundquists expert witness, Dr. Glover, testified that Sundquist did not suffer from any mental disorder, and denied during cross-examination that two years before it had been found to be true that Sundquist suffered from paraphilia. This led to the following exchange:
"Q. Dr. Glover, as you know, it was determined two years ago that Mr. Sundquist suffered from paraphilia, what are you suggesting has changed in two years to alter that diagnosis?
"A. Well, the fact that he was diagnosed with paraphilia does not necessarily mean that he suffers from a diagnosis of paraphilia. I have seen other patients at Atascadero State Hospital that have had diagnoses all over the map. Now just because some clinician is of the opinion that he suffers from paraphilia does not necessarily make it so."
The court then announced a recess. After the jury had left the courtroom, the court admonished Dr. Glover "so I dont have to advise this jury that a previous jury found certain facts to be true . . . ." The court, after referring to the collateral estoppel doctrine, told Dr. Glover, "The question for us at this time is not whether the finding on that prior occasion was not true. And I know you disagree with that diagnosis, but it is a fact of this case." The court continued:
"I have avoided telling the jury because I dont want them influenced by a finding of another jury that there is a jury finding of his mental disorder, so I have avoided that question. I would ask that in your answers to attorneys here that we not reference the prior jury finding, but I also instruct you there has been a prior finding of mental disorder by a jury. It is a fact of this case . . . . I dont want to run into additional problems that might otherwise prejudice the jury and that is why I am telling you this."
After the jury returned, the prosecutor continued with her cross-examination as follows:
"Q. Dr. Glover, as you know it was determined two years ago that Mr. Sundquist suffered from paraphilia. What are you suggesting changed in two years to alter that diagnosis."
"A. "His age certainly plays a factor in how he conducts himself.
"Even though there is evidence to the contrary, with respect to his conduct on the various units where he has been, um, but—there are other behaviors that are somewhat consistent with that diagnosis, but we have to be very careful because much of what Mr. Sundquist does that people complain about would fall under a diagnosis of narcissistic personality trait disturbance, and that was one of the diagnoses that was offered in . . . MCMI-III that I administered to him.
"So I would say that there has been an escalation of his narcissistic personality trait disturbance, and I think that there are some people who would mistakenly see that as an increase in the paraphilic symptomology.
"Now, if I were to be fearful of such diagnosis, I would expect to see more disruptive behavior of a sexual nature in the hospital setting, and I havent seen anything that would suggest that."
In her closing argument, the prosecutor told the jury that assessing Sundquists mental condition required evaluation of circumstantial evidence and that the jurys task was to determine whether Sundquist was "still a sexually violent predator." She told the jury:
"The only offer in the evidence that disputes that in fact Mr. Sundquists diagnosis is paraphilia came from Dr. Glover who said that he did not agree that it was in fact determined to be the diagnosis two years ago. But he is wrong about that.
"And when I asked him what has changed in two years since Mr. Sundquist has been at Atascadero State Hospital, the only thing he could offer is that Mr. Sundquist is older now. But you can see that age is not part of the diagnosis. Age may be a factor that comes into play when we discuss whether or not hes likely to reoffend. But age does not change the fact that he suffers from paraphilia.
"So nothing contradicts the fact that Mr. Sundquist suffers from the mental diagnosis, paraphilia, which is the second element."
The prosecutor also told the jury that Sundquist had been transported to Atascadero for treatment "because it is known that, based upon his diagnosis, his risk factors, he is likely to reoffend," that Sundquist had done nothing to support his claim that he was no longer dangerous, and that the jury should find the petition true because "he remains a sexually violent predator and he is a danger." (Italics added.)
In its instructions to the jury, the trial court did not refer to the finding of mental disorder in the prior proceeding, and instructed the jury that it was required to determine whether or not Sundquist currently suffered from a mental disorder making him likely to reoffend if released.
2. Case Law Published After the Trial
We agree with Sundquist that, in light of Munoz, supra, 129 Cal.App.4th 421, the trial court should not have ruled that the prior finding about Sundquists mental condition in 2002 was an unassailable fact of the present case pursuant to collateral estoppel principles. Indeed, Munozs clear and direct applicability here is in large measure why we see no reason to make an exception to the mootness doctrine for this case.
An SVP is defined as "a person who has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1).) If certain preliminary administrative requirements are met (§ 6601), a petition is filed and, if a court finds that there is "probable cause" to believe that a person named in a petition is likely to engage in sexually violent predatory criminal behavior upon release (§ 6602, subd. (a)), a trial is conducted "to determine whether the person is, by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her release . . . ." (Ibid.) The alleged SVP is entitled to a trial by jury, the assistance of counsel, the right to retain experts to perform further evaluations, and access to relevant medical and psychological reports. (§ 6603, subd. (a).) The trier of fact must "unanimously" determine beyond a reasonable doubt whether the person named in the petition is in fact an SVP. (§§ 6603, subd. (f), 6604.) If a person is determined to be an SVP, he or she is committed to the custody of the DMH for two years "for appropriate treatment and confinement in a secure facility," subject to annual review and possible extended commitment. (§§ 6604, 6604.1, 6605.)
Extended commitment terms are also for two-year periods. (§ 6604.1, subd. (a).) As we have already discussed, each SVPA commitment proceeding is separate from any other, and must be conducted with essentially the same procedures as the original proceeding. (Butler v. Superior Court, supra, 78 Cal.App.4th at pp. 1179-1182; § 6604.1, subd. (b) [stating that the "rights, requirements, and procedures set forth in Section 6603" apply to extended commitment proceedings]; (Munoz, supra, 129 Cal.App.4th at p. 429.) Any extended commitment must be based on a finding about an SVPs mental condition at the end of their current two-year term. (Ibid.)
Division One of the Fourth Appellate District has recently addressed in two relevant cases the proper application of collateral estoppel principles in SVPA extended commitment proceedings. First, it held that the collateral estoppel principles applied to a finding in a prior proceeding that a person did not possess the requisite dangerousness to be an SVP in Turner, supra, 105 Cal.App.4th 1046. It then held that collateral estoppel principles did not apply to a finding in a prior proceeding that a person suffered from a certain mental disorder in Munoz, supra, 129 Cal.App.4th 421. The trial in this action occurred after the publication of Turner, but, as we have already discussed, before that of Munoz.
In Turner, supra, 105 Cal.App.4th 1046, a jury in a prior proceeding had found that Turner was not a danger to the health and safety of others, was not likely to engage in acts of sexual violence upon his release and, therefore, was not an SVP. (Id. at pp. 1051-1052.) Turner was released from custody, but violated his parole three months later and was taken back into custody. (Id. at p. 1052.) A new petition was filed alleging that he was an SVP. (Ibid.) At the probable cause hearing, Turners counsel argued, among other things, that the prosecution could not relitigate the issue of whether Turner was likely to engage in future sexually violent behavior in light of the previous jury finding eight months before. The court rejected the argument. (Id. at p. 1053.)
The appellate court determined that neither the SVPA nor due process principles prevented the prosecutor from filing a second petition, given that it had been filed after Turner had been reincarcerated for a parole violation. (Turner, supra, 105 Cal.App.4th at pp. 1056-1057.) The court concluded, however, that collateral estoppel principles could apply in SVPA proceedings, reasoning that "[i]f these principles did not apply, the integrity of the first proceeding could be undermined and there would be serious questions about the fundamental fairness of a scheme that would permit the government to file successive petitions against an individual in the same forum and on the same facts in a proceeding that could potentially result in a complete loss of liberty[.]" (Turner, at p. 1057.) It found that although such principles may apply, this did not necessarily bar a second petition, but only barred the relitigation of issues decided in a prior proceeding if they met the elements of collateral estoppel. (Id. at p. 1058.) The court determined that the prior finding that Turner did not pose a sufficient danger of committing violent sexual acts upon his release was not identical to the issue before the court, which was about Turners current dangerousness. (Id. at pp. 1058-1059.) Thus, this prior finding did not absolutely bar a later petition seeking to show Turner was an SVP at a later time. (Id. at p. 1059.) However, the prior finding had a "strong probative value as to the precise issue to be decided in the current proceeding: . . . particularly because the two petitions were filed so close in time." (Ibid.) Moreover, the specific issue of whether Turner was likely to reoffend at the time of the prior proceeding could not be relitigated pursuant to collateral estoppel principles. (Ibid.) "Accordingly, to establish probable cause in the subsequent proceeding, the district attorney must present evidence of a change of circumstances, i.e., that despite the fact the individual did not possess the requisite dangerousness in the earlier proceeding, the circumstances have materially changed so that he now possesses that characteristic." (Id. at p. 1060.)
" ` "First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding." " (Turner, supra, 105 Cal.App.4th at p. 1058.)
Subsequently, in Munoz, supra, 129 Cal.App.4th 421, the same appellate court, the First Division of the Fourth Appellate District, considered whether the trial court erred by allowing certain evidence and argument concerning Munozs two prior SVP commitments. (Id. at p. 426.) The trial court admitted evidence of Munozs prior commitments, but only as they were relevant to his history and to explain why he was incarcerated in the state hospital. (Ibid.) However, one of the prosecutions experts testified on direct examination that she had evaluated Munozs progress after the prior commitments and determined whether he "continues to meet the criteria under the SVP law." (Munoz, at p. 427.) Also, after Munoz testified that he did not have a mental disorder, the prosecutor cross-examined him on the times that he had admitted to the allegations of the first SVP petition in 1998, and asked him why, if he believed that he did not have a mental disorder, he had not contested the findings of the doctors in that prior proceeding indicating that he did. (Id. at pp. 427-428.) In addition, the court admitted into evidence a minute order from that previous proceeding which stated that Munoz waived his right to trial, submitted the matter on documents to the court, and was subsequently committed by the court to the state hospital as an SVP. (Id. at p. 428.) The prosecutor also argued to the jury that the respondent was an SVP, that there had been no change in him during his two years at the state hospital, and referred to the respondents failure to contest the 1998 petition finding that he suffered from a mental disorder. (Ibid.)
The Munoz court also stated that the issues raised were moot because the commitment that was the basis for the appeal had expired. However, the court did not dismiss the appeal because some of the legal issues to be decided were of broad public interest and were likely to recur. (Munoz, supra, 129 Cal.App.4th at p. 424, fn. 2.)
The appellate court found that the prosecutors cross-examination and argument to the jury were improper because they suggested that the issue before the jury was whether anything had changed since the prior commitment. The court explained that "an SVP extension [of commitment] hearing is a new and independent proceeding at which, with limited exceptions, the petitioner must prove the defendant meets the criteria, including that he or she has a currently diagnosed mental disorder that renders the person dangerous." (Munoz, supra, 129 Cal.App.4th at p. 429.) The court noted that "[w]hile it is certainly the case that the fact of a prior SVP commitment has some relevance in determining whether a defendant has a currently diagnosed mental disorder, that relevance is limited and great care must be taken in admitting evidence concerning the prior commitment." (Id. at p. 430.) It cautioned that petitioners burden of proof in a extended commitment proceeding is such that it "is required . . . to prove beyond a reasonable doubt that the defendant is an SVP, not that he is still an SVP[,]" and that "each recommitment requires petitioner independently to prove that the defendant has a currently diagnosed mental disorder making him or her a danger. The task is not simply to judge changes in the defendants mental state." (Id. at p. 430.) The court concluded that "[w]hile it is proper, when relevant, to take judicial notice of the prior finding, it is improper to take notice of the truth of that finding." (Ibid.)
The Munoz court recognized that in some "unusual situations" the fact of a prior suit finding may be significant, such as in Turner, supra, 105 Cal.App.4th 1046. The court emphasized that the evidence at issue in Turner had strong probative value under the circumstances of that particular case, and that the state had been barred from relitigating the issue of whether it was likely Turner would reoffend on release. However, "[t]his holding in Turner does not suggest the converse, i.e., that prior factual findings in an SVP hearing unfavorable to the defendant are admissible in a later SVP hearing. . . . The Turner opinion does not hold that the mental conditional finding [in the prior proceeding] was admissible in the subsequent SVP proceeding to prove [Sundquist] still suffered from that condition." (Munoz, supra, 129 Cal.App.4th at p. 432.) The court continued:
"It may be impossible to avoid the jurys learning that the defendant has already been committed as an SVP, e.g., it may be necessary for experts to discuss the defendants treatment and behavior while in the state hospital. Still, it is necessary that nothing be done that suggest to the jury that its task is to compare the defendants present mental status with an earlier finding that he or she is an SVP. As we have noted each SVP hearing addresses the defendants current mental state. Nothing must be done to suggest the defendant is required to prove he is no longer an SVP or to effectively lessen the states burden by establishing a datum of mental disorder and dangerousness." (Munoz, supra, 129 Cal.App.4th at p. 432.)
Munoz, supra, 129 Cal.App.4th 421 is directly on point here. The trial court below, acting prior to Munozs issuance, did exactly what Munoz prohibits: it ruled and instructed counsel, and directly instructed Dr. Glover, that the relitigation of Sundquists mental condition as of the prior proceeding was barred by collateral estoppel principles, and that the previous finding that he had a mental disorder as of the date of that prior proceeding was a fact in the present case that could not be challenged. The trial court in effect not only took judicial notice of the prior finding, but of the truth of that finding, which Munoz makes clear is improper. (Id. at p. 430.) As a direct consequence of its ruling, the court limited Dr. Glovers testimony, prohibiting him from directly challenging the conclusions of the evaluators in the prior proceeding. Furthermore, the prosecutor, as a result of and consistent with the courts rulings and instructions, stated that "it was determined two years ago that Mr. Sundquist suffered from paraphilia," asked Dr. Glover about what had "changed" since that time, and argued to the jury that in fact, nothing had changed. The prosecutors actions directly conflicted with Munozs instruction that "Nothing must be done to suggest the defendant is required to prove he is no longer an SVP or to effectively lessen the states burden by establishing a datum of mental disorder and dangerousness." (Id. at p. 432, italics added.)
Respondent attempts to persuade us that the court acted properly below by arguing that "in context, however, the courts ruling did not suggest that the prosecutor could rely solely on the lack of changed circumstances . . . ." Respondent notes that the court and parties agreed that the prosecution had to prove that Sundquist was an SVP, not that he was still an SVP; that Munoz, supra, 129 Cal.App.4th 421, does not prohibit the introduction of evidence of a prior determination; that the court "did not allow" the prosecutor to argue that the prior determination created a presumption; and that the court excluded from the jury that a prior jury verdict had been made about Sundquists condition. Respondent contends that the prosecutors "changed circumstances" questions to Dr. Glover, read in context, did not shift any burdens to Sundquist, and that the court, in admonishing Dr. Glover, "was simply reiterating its position that it did not want the current jury to hear about the prior jury verdict." Respondent also points to Dr. Glovers subsequent testimony, contending correctly that Dr. Glover did not actually expressly concede that Sundquist previously had been properly diagnosed with paraphilia. Finally, respondent argues that the prosecutors closing argument "did not . . . specifically suggest that the earlier diagnosis of paraphilia was true simply because the prior determination had been made."
The prosecutors arguments avoid the real issue, which is whether or not the courts collateral estoppel ruling led to actions which suggested that Sundquist was required to prove he was no longer an SVP, or "effectively lessen[ed] the states burden by establishing a datum of mental disorder and dangerousness." (Munoz, supra, 129 Cal.App.4th p. 432.) The Munoz court, by its references to the word "suggest" (rather than "instruct that," for example) and the phrase "effectively lessen" in its cautionary instruction intended that its instruction be applied broadly. Regardless, we need not construe it too broadly here. The trial court, although it did not tell the jury of its collateral estoppel ruling directly or alter its jury instructions to reflect its ruling, nonetheless shaped and limited the evidence so as to "suggest" to the jury, a suggestion reinforced by the prosecutors questions and arguments about "changed circumstances," that the jury should focus on whether or not Sundquist was still an SVP. This is precisely what Munoz prohibits.
Given the clear guidance of Munoz, supra, 129 Cal.App.4th 421, we have nothing to add to the collateral estoppel issues addressed by it. Thus, we do not have any important issues of public interest to address. Moreover, given Munozs clear guidance, we conclude that the trial courts collateral estoppel error is unlikely to be repeated in subsequent extended commitment proceedings.
B. Sundquists Jury Instruction Argument
Sundquist also argues on appeal that the trial court purportedly erred by denying Sundquists request that a standard jury instruction, CALJIC No. 4.19, be modified to inform the jury that it could not sustain the petition unless it found that Sundquist suffered from a volitional impairment rendering him dangerous beyond his control. However, Sundquist concedes that we are obligated pursuant to Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, to reject his argument because the trial court acted consistently with our Supreme Courts holding in People v. Williams (2003) 31 Cal.4th 757, and that he has raised the issue in order to preserve the issue for review in federal courts. Sundquist argues that "a claim that the pattern jury instruction results in an unconstitutional standard of commitment is a question that is likely to recur in all future SVPA commitments, including appellants, and presents an issue of broad public support." We disagree. We see no reason to discuss this issue further in light of the clear precedent that must be followed.
In light of our determination that this appeal should be dismissed as moot pursuant to our discussion herein, we have no reason to discuss the other issues raised by the parties, such as whether collateral estoppel principles could be applied offensively, whether the courts collateral estoppel ruling constituted a due process violation under other legal theories, or whether the courts error was harmless. We refrain from doing so.
DISPOSITION
This appeal is dismissed as moot.
We Concur:
Haerle, P.J.
Richman, J.