PEOPLE v. LOPEZ

Filed 12/21/06; part pub. order 1/18/07 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

I.  INTRODUCTION

            Defendant Elijah Samson Lopez appeals from an order of the trial court recommitting him to the Department of Mental Health for a period of two years under the Sexually Violent Predators Act (SVPA).  (Welf. & Inst. Code, § 6600 et seq.)[1]

            Defendant raises two issues on appeal:  (1) the trial court erred in instructing the jury that as a matter of law defendant had suffered the requisite qualifying prior convictions; and (2) ineffective assistance of counsel, consisting of defense counsel's failure to object on proper grounds to the admission of the prior trial testimony of Joseph, a victim witness.

            For reasons that we will explain, we find no error and therefore we will affirm the recommitment order.

II.  FACTUAL AND PROCEDURAL BACKGROUND

            A.  Procedural History

            In 1990, defendant pleaded no contest to two counts of committing a lewd and lascivious act on a child (Pen. Code, § 288, subd. (a).)  The two victims were brothers Raul (age 11 or 12) and Gerardo (age 9).  About a year after his release from prison in 1993, defendant was arrested and his parole was revoked as the result of an incident where he allegedly touched the penis and testicles of Mark (age 15).  In 2000, defendant was arrested for failure to register as a sex offender.  (People v. Lopez (2004) 123 Cal.App.4th 1306, 1308 (Lopez I).)

            On December 3, 2001, the District Attorney of Santa Clara County filed a petition to commit defendant under the SVPA.  At trial, two psychologists, Dr. Douglas Korpi and Dr. Jack Vognsen, testified that defendant suffered from paraphilia, a sexual disorder characterized by an interest in sex with children.  A victim witness, Joseph, testified regarding an uncharged incident in 1990, when he was 19 years old.  During that incident, Joseph woke up and found defendant orally copulating him.  Defendant also testified at trial.  He denied sexual contact with any of the victims.  (Lopez I, supra, 123 Cal.App.4th at pp. 1308-1309.)

            The jury found defendant to be a sexually violent predator and the trial court committed defendant to the Department of Mental Health for a period of two years, from July 16, 2003 to July 16, 2005.  (Lopez I, supra, 123 Cal.App.4th at p. 1309.)  We affirmed defendant's commitment in Lopez I, supra, 123 Cal.App.4th at page 1315.

            On March 14, 2005, the District Attorney filed a petition to extend defendant's commitment as a sexually violent predator for an additional two-year period, from July  16, 2005, to July 16, 2007.  Defendant waived his right to a probable cause hearing on the recommitment petition.  On March 30, 2005, the trial court found there was probable cause to believe that defendant had been convicted of a qualifying sexual offense against at least two victims, that he had a diagnosable mental disorder, that the disorder made it likely that defendant would engage in sexually violent criminal conduct if released, and the sexually violent criminal conduct would be predatory in nature.

            B.  Jury Trial

            The jury trial on the recommitment petition began on July 28, 2005.  During motions in limine, the trial court considered the People's motion to â€