P. v. Woodard






Filed 4/27/11 P. v. Woodard CA1/5




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. VICTOR WOODARD, Defendant and Appellant.

A125331 (Alameda County Super. Ct. No. C128075B)

Victor Woodard was tried before a jury and determined to be a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)[1] In this appeal from the order committing him to the State Department of Mental Health (DMH) for an indeterminate period, he contends: (1) the current SVP (sexually violent predator) scheme is unconstitutional; (2) the evidence was insufficient to support the jury's determination that he meets the criteria for an SVP; (3) the court abused its discretion in limiting defense counsel's cross-examination of the prosecution experts regarding the total compensation they receive for their work on the SVP panel; and (4) the trial court should have held a hearing on his alleged request for substitute counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
We agree with appellant that under People v. McKee (2010) 47 Cal.4th 1172, he is entitled to a remand so the trial court can consider his claim that his indeterminate commitment under the current SVP scheme violates his right to equal protection under the law. We reject the remainder of his arguments.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was initially committed as an SVP for a two-year period on July 10, 2000. The Alameda County District Attorney filed a petition to extend the commitment for two more years under former section 6604 et seq., but as a result of several delays, that petition was still pending when a subsequent petition seeking another two-year extension was filed. A jury trial was held on the consolidated petition, and appellant was recommitted on December 16, 2004. That commitment was reversed on appeal due to evidentiary error, and the case was remanded for a retrial.
While the appeal from the recommitment proceeding was still pending, the district attorney filed a third petition to extend the SVP commitment. Over defense objection, the court granted the district attorney's request to amend the petition to seek an indeterminate term pursuant to recent changes in the SVPA. The court also ordered the petition consolidated with the two previous petitions that were the subject of the remand following appeal. A jury trial on the consolidated petition commenced in May 2009.
The district attorney introduced documentary evidence of two prior convictions alleged to be the predicate offenses for the SVP commitment.[2] The first arose from an incident in 1976, which began when appellant knocked on the door of his neighbor, Deborah J., claiming he had lost the keys to his apartment. They exchanged words and appellant forced his way inside, where he slapped and choked Deborah. He forced her into the bedroom and said he wanted to have sex, but she would not cooperate. Appellant then took her to his apartment, where he raped and orally copulated her and penetrated her anus with his penis. He fell asleep afterward and Deborah went back to her apartment. Appellant was convicted of rape and forcible oral copulation (Pen. Code, §§ 261, 288a) and was sentenced to prison for an indeterminate term of three years to life.
The second predicate offense arose from acts committed in 1982, when S.H. rode with appellant in his van to purchase some drugs. After they freebased cocaine in the van, appellant slapped her face, hit her in the head with a tire iron, and tied her up. He drove her to several different locations and forced her each time to orally copulate him while he held a pair of scissors to her neck, though he could not achieve an erection. He then hit her in the head with an ax and told her he was going to chop her head off. S.H. eventually was able to run away and was found the next day stumbling incoherently through town. She required surgery on her scalp, skull, and brain. Appellant was convicted of two counts of forcible oral copulation and one count of assault with a deadly weapon (Pen. Code, §§ 288a, 245) and was sentenced to 14 years four months in prison.
Appellant was evaluated by Dr. Robert Owen, a psychologist under contract with the state to assess potential SVP's. Dr. Owen testified that appellant met the statutory criteria for an SVP in that he presented a substantial risk of reoffending due to a mental disorder. He diagnosed appellant as suffering from paraphilia, which is characterized by â€