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In re Franklin

December 17, 2008

IN RE EDWIN V. FRANKLIN, ON HABEAS CORPUS.


ORIGINAL PROCEEDING; order to show cause issued by Supreme Court, returnable to Court of Appeal, Fifth Appellate District. James T. LaPorte and Peter M. Schultz, Judges. (Related Cal. Supreme Ct. Case No. S157913) (Related Kings County Superior Ct. Case No. 06C0246).

The opinion of the court was delivered by: Gomes, J.

CERTIFIED FOR PUBLICATION

OPINION

Edwin Franklin petitions for writ of habeas corpus to require dismissal with prejudice of the pending petition for his civil commitment as a sexually violent predator (SVP) and to require his release from custody arising out of those proceedings.*fn1 We will grant his petition.

FACTUAL AND PROCEDURAL BACKGROUND

On August 24, 2001, on the basis of a 2001 SVP petition alleging, inter alia, a 1978 rape conviction, a 1981 rape conviction, a 1991 voluntary manslaughter conviction (on which the superior court imposed a sentence of 12 years), and a 1994 possession of a controlled substance in state prison conviction (on which the superior court imposed a sentence of an additional three years), a jury for the first time found Franklin to be an SVP.

On August 28, 2001, the superior court ordered Franklin's first two-year SVP civil commitment (2001 SVP commitment). On January 21, 2003, we affirmed the judgment of the 2001 SVP commitment, rejecting his argument that his 1978 rape conviction failed to qualify as a conviction of a sexually violent offense within the scope of the SVPA. (People v. Franklin (2003) 105 Cal.App.4th 532.)

On August 11, 2004, on the basis of a 2003 SVP petition alleging a 1978 rape conviction, a 1981 rape conviction, a 1991 voluntary manslaughter conviction (on which the superior court imposed a sentence of 12 years), a 1994 possession of a controlled substance in state prison conviction (on which the superior court imposed a sentence of an additional three years), and a 2002 perjury conviction (on which the superior court imposed a sentence of 25 years to life), a jury for the second time found Franklin to be an SVP.*fn2

On August 13, 2004, on the basis of the 2003 SVP petition, the superior court ordered Franklin's first two-year SVP civil recommitment (2003 SVP recommitment) along with transportation to Atascadero State Hospital "upon completion of his pending criminal matter in case number 04CM2486," in which, on November 8, 2004, the superior court imposed a sentence of 25 years to life for felony willful and intentional damage to jail property in excess of $400 (jail door case).

On January 3, 2006, we affirmed the judgment of the 2003 SVP recommitment, again rejecting Franklin's argument that his 1978 rape conviction failed to qualify as a conviction of a sexually violent offense within the scope of the SVPA. (People v. Franklin (Jan. 3, 2006, F046162) [nonpub. opn.])

On March 24, 2006 (some 16 months after imposition of a sentence of 25 years to life in the jail door case), the prosecutor represented in open court that his office had sent a letter to Atascadero State Hospital in April of 2005 (some five months after imposition of sentence in that case) stating that "we would no longer proceed on the extensions of the S.V.P. case" and asking that the hospital "take it off their calendar" and represented in open court that the hospital "had done" that. "And therefore," he continued, "there is no reason to proceed on this since he's no longer being held under the provisions of that. And we'll make motions to the Court to enter such rulings as are necessary to release Mr. Franklin's S.V.P. status." Franklin noted "the defense would have no objections." The superior court addressed the deputy attorney general who was appearing by telephone, "That renders moot the matter that the Attorney General is appearing on."

On that state of the record, the prosecutor represented, "We're just going to ask that it terminate at this time." The superior court replied, "Okay. So the appropriate order, then, would be on motion of the People that the current S.V.P. commitment that Mr. Franklin is serving is dismissed and that he be freed from any encumbrances that result from that commitment." The prosecutor added, "From that extension, that's correct. And I'm advised that he's still subject to these proceedings in the future if someone should wish to bring them, but at this time we're not proceeding any further on the current commitment." The superior court replied, "Okay. Of course Mr. Franklin's position is that he would not be subject to such proceedings in the future, but that is something that would be litigated in the future." The prosecutor noted, "Sure, that's whatever the law is." The superior court concluded, "Okay. It will be so ordered."

On May 5, 2006, we reversed Franklin's conviction in the jail door case, noting that an insufficiency of the evidence of the requisite $400 damage for felony willful and intentional damage to jail property required a remand for a probation and sentencing hearing on the lesser included offense of misdemeanor willful and intentional damage to jail property. (People v. Franklin (May 5, 2006, F046873) [nonpub. opn.].) On the same date, the clerk/administrator of this court served by mail a copy of the opinion on, inter alia, the superior court, the Attorney General, and Franklin.*fn3

On June 8, 2006, on the basis of mental health evaluation summaries by two psychologists, the prosecutor filed a new SVP petition with the same case number as the 2003 SVP recommitment. On July 7, 2006, the superior court clerk filed the remittitur in the jail door case; the superior court acknowledged a notation about the remittitur in the computer docket (register of actions) but declined to accept the certified copy Franklin proffered in open court; the superior court complained that no copy of the opinion was attached to the remittitur, even though Franklin proffered a copy of the opinion in open court and the clerk/administrator of this court had served a copy of the opinion on the superior court two months and two days earlier; the prosecutor requested (and the court ordered) dismissal of the SVP petition filed on June 8, ...


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