P. v. Warren

Filed 4/14/06 P. v. Warren 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Tuolumne County. Eleanor Provost, Judge.

Susan K. Keiser, 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, Louis M. Vasquez and Julie Hokans, Deputy Attorneys General, for Plaintiff and Respondent.

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John Stephen Warren was first committed as a sexually violent predator (SVP) in 1996 pursuant to the provisions of the Sexually Violent Predators Act (SVP Act). (Welf. & Inst. Code, § 6600 et seq.)^[1] He appeals from the order extending his commitment after a jury found he continued to be an SVP.

Warren claims the trial court abused its discretion when it refused to approve funds to pay for the trial testimony of the expert Warren retained to aid his defense. The trial court concluded the total fee charged by the expert for both an examination and trial testimony was unreasonable. We agree with Warren and will reverse the order extending his commitment.

FACTUAL AND PROCEDURAL SUMMARY

Warren was convicted of three counts of lewd acts with a child committed by force. (Pen. Code, § 288, subd. (b).) The three victims were the two-, four-, and nine-year-old children of Warren's girlfriend, with whom he cohabitated. Between September 1984 and June 1986, Warren forced the victims to orally copulate him, raped one of the victims, and sodomized two of the victims.

Warren was first committed as an SVP in 1996. The commitment has been renewed every two years. We have rejected each of his previous appeals.

The latest petition seeking to extend Warren's commitment was filed in a timely manner in August 2004. The trial was continued at Warren's request several times. The reason for the requested extension was to permit Warren to retain a psychologist to testify on his behalf and obtain the funds to pay for the psychologist.The trial eventually was held in February 2005. For reasons we will discuss post, Warren did not call an expert to testify on his behalf. The only witnesses were the two psychologists retained by the People, Dana Evan Putnam, Ph.D., and Christopher North, Ph.D. Warren refused to be interviewed by either psychologist, so their opinions were based on Warren's history, including reports on his crimes, past evaluations, and his records at Atascadero State Hospital (ASH). They each testified Warren met the requirements of the SVP Act and that Warren was an SVP.

Warren testified on his own behalf. He accepted responsibility for his acts, but asserted he was not a danger to society because the prospect of returning to prison for the rest of his life would deter him from committing any crimes in the future. His attorney also argued the People had failed to prove their case because both Putnam and North based their opinions on acts that occurred 20 years ago. Thus, according to Warren, there was no evidence he currently was an SVP. The jury disagreed.

DISCUSSION

I. Expert Witness Funding

Warren filed a confidential request for funds to obtain the services of O.S. Glover, Ph.D., to assist in his defense. In support of the request, Warren provided Glover's curriculum vitae and informed the trial court that Glover charged $350 per hour for his services. The evaluation would cost between $2,500 and $3,000, including an initial examination and the review of records. Glover's curriculum vitae stated his office was located in Richmond, California. The request concluded, â€