Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FBA1820, John B. Gibson, Judge.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Janelle Boustany, Supervising Deputy Attorney General, and Karl T. Terp, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST J.
Defendant Reginald Leon Carroll appeals from an order committing him to a secured facility after a jury found him to be a sexually violent predator (SVP) pursuant to the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. PROCEDURAL BACKGROUND AND FACTS
On June 26, 1997, defendant was sentenced to state prison for a total term of 15 years after having been convicted of five counts of unlawful sexual intercourse (Pen. Code, § 261.5), three counts of lewd act upon a child (Pen. Code, § 288, subd. (c)), three counts of sodomy of a person under 16 (Pen. Code, § 286, subd. (b)(2)), one count of sodomy of a person under 18 (Pen. Code, § 286, subd. (b)(1)), and five counts of pandering (Pen. Code, § 266i). Subsequently, following defendant’s appeal, this court reversed two counts of pandering and modified the judgment by staying the sentences on three counts of sodomy of a person under 16 and one count of sodomy of a person under 18. Following remand, defendant was sentenced to a total term of 13 years in state prison.
On October 6, 2004, the San Bernardino District Attorney’s office petitioned the trial court to commit defendant as an SVP for two years. In support of its petition, the district attorney’s office attached the evaluations of Drs. Dana E. Putnam and Jack Vognsen, the reporter’s transcript of defendant’s preliminary hearing on the 1995 charges, and the probation officer’s report. Following a hearing on the petition, the trial court found by the standard of probable cause that defendant fell within section 6600 et seq., and that based on the diagnoses of the experts there was a serious and substantial risk of reoffending. Thus, a trial was ordered.
A jury trial began on June 7, 2005. Two experts testified on behalf of the state: Dr. Dana Putnam, a forensic psychologist certified by the state to perform sexually violent predator evaluations, and Dr. Jack Vognsen, a licensed clinical psychologist also certified to perform sexually violent predator examinations.
A. Evaluation by Dr. Putnam
Dr. Putnam described his education, training and experience working with and treating individuals convicted of sexual offenses, including working at Atascadero State Hospital. In 1996, Dr. Putnam began a private practice which included working with the Board of Prison Terms doing independent evaluations to determine whether individuals were mentally disordered offenders, and doing independent evaluations for the Department of Mental Health to determine whether individuals were sexually violent predators. He had conducted approximately 261 evaluations, including initial, update, and recommitment evaluations.
According to Dr. Putnam, there are three factors considered in evaluating an individual to determine whether he is an SVP pursuant to section 6600. They are: (1) whether he has been convicted of sexually violent offenses involving two or more victims; (2) whether he has a diagnosable mental disorder making him a danger to the health and safety of others; and (3) whether it is likely he would engage in sexually violent criminal behavior if released. In evaluating defendant, Dr. Putnam reviewed information regarding defendant’s arrests, his charges and convictions, police reports, charging documents, preliminary hearing transcripts, abstracts of judgment, probation reports, prison records, county mental health treatment, prison facility evaluations, and medical records. Dr. Putnam also conducted a two and one-half hour interview with defendant at the California Men’s Colony on September 8, 2004, and spoke with one of his victims, Ashley.
Dr. Putnam diagnosed defendant as having paraphilia not otherwise specified. Paraphilia is a sexual disorder involving “recurrent, intense, sexually arousing fantasies, urges or behaviors,” involving “[n]on-human objects, suffering or humiliation of one’s self or one’s partner, or children or other non-consenting persons.” Defendant’s paraphilia involved nonconsensual sex, i.e., oral and anal sex, with teenage girls, specifically cheerleaders, who were vulnerable. This was manifested in defendant’s behavior with several victims, as well as in his writings. Dr. Putnam described defendant’s criminal history consistent with paraphilia, all of which occurred while defendant was married.
In 1986 in Wisconsin, defendant became involved with Beth, a 17-year-old high school cheerleader, to whom he wrote obscene, threatening letters falsely accusing her of being seen and photographed while drunk and having sex with defendant. Defendant wrote the letters from a third person perspective as though having observed Beth having sex with him. However, the letters were traced back to defendant’s typewriter. Additionally, defendant contacted Beth and tried to coerce her into having sex in return for the alleged photographs of them having sex. As a result of this behavior, he was convicted of 10 counts of unlawful telephone calls (two felony counts were dismissed) and was put on probation for two years.
In 1991 and 1992, defendant was convicted of offenses involving 17-year-old Michelle and 19-year-old Yvette, which were also consistent with defendant’s diagnosis of paraphilia. Both offenses involved sexual conduct with cheerleaders, duress, coercion and lies. As a result of his conduct with Michelle and Yvette, defendant was convicted of misdemeanor child molesting (Pen. Code, § 647.6) and served 180 days in jail.
Defendant wrote obscene letters to Michelle, which were read to the jury. In the first letter, defendant described how he liked watching Michelle in her tight clothing and “sexy cheerleading uniform,” wanting to “rip” down her panties and have sex with her, offering to pay her to take pictures of herself in her cheerleading uniform, offering more money for “sexy” pictures. The letters involved a rendezvous with defendant at the library and Michelle giving him a code word, but Michelle reported defendant’s contacts to her parents and the police before the meeting took place. Michelle wore a tape recording device to the rendezvous and defendant was arrested.
In 1991, defendant employed Yvette, engaging her to type a pornographic novel called “Horny Hot School Girl” and making her sign a contract to model provocative clothing and allow him to fondle and caress her as well as touch her private parts. The pornographic novel involved a high school teacher who coaxed an unwilling cheerleader into having sex with him. The typed novel was admitted into evidence. The contract defendant had Yvette sign was also entered into evidence. Defendant made Yvette sign the contract after taking pictures of her in provocative clothing and then threatening to show the photographs to her family and her boyfriend if she did not sign the contract.
Dr. Putnam also took into consideration coerced sex defendant had with another victim, Cristy, between 1993 and 1995. Cristy worked for defendant, and defendant promised to get Cristy’s father a job if she would have sex with him. Cristy did not want to have sex with defendant, but defendant said he would not help her father find a job unless she did. Defendant rented a room at the Minn-Iowa Motel, where he would have intercourse and sodomy with her over her protestations that he was hurting her.
Dr. Putnam also considered convictions resulting from defendant’s sexual behavior with victims Charlene and Rowena between 1993 and 1995, involving sodomy. Charlene and Rowena were sisters who met defendant through Cristy. Defendant, who was 43 years old at the time, forced himself on 14-year-old Charlene, ultimately sodomizing her as she cried and told him to stop. Defendant also forced himself on 15-year-old Rowena, having anal and vaginal intercourse resulting in pregnancy and the birth of their child. While defendant denied paternity of the child, a blood test established him as the father. A second offense involving Rowena occurred when defendant took her to the Minn-Iowa Motel to have sex after she asked him for money. At the motel, defendant forcefully removed her clothing and sodomized her, even though she was crying in pain that it hurt.
Dr. Putnam opined that defendant’s three sodomy convictions involving Charlene and Rowena involved force and duress and thus met the first criterion for establishing defendant was an SVP, i.e., convictions involving force, violence, duress, menace, or threats. Dr. Putnam explained the girls were young and that defendant pinned them down and forcefully removed their clothes. The girls described being forced to have sex and stated that defendant continued having sex with them even though they complained that it hurt and they were in pain. The second incident with Rowena involved duress even though she was offered money, because defendant continued to sodomize her when she told him to stop.
After defendant was released on parole, in 2003 he moved to Virginia where he encountered then 16-year-old Ashley and engaged her in employment, despite the fact that he had a condition of parole prohibiting him from having contact with minors. Ashley’s family lived next door to a facility where defendant worked. Defendant offered Ashley an employment application, telling her she should get a job at the facility. Ashley said that on several occasions when defendant was alone with her, he would brush up against her. On 10 occasions, he commented on her body and said she had nice breasts and a “nice butt.” On three occasions, he took her driving in a car.
Dr. Putnam considered defendant’s parole violation involving Ashley to be sexual in nature because of his conduct. Defendant’s behavior was consistent with a sustained diagnosis of paraphilia not otherwise specified. Defendant’s criminal conduct spanned 1986 through 2003 and included committing multiple illegal sexual acts resulting in criminal convictions, and despite the negative repercussions — the toll on his family, serving time in prison, and having an illegitimate child — he continued to engage in the criminal acts.
Dr. Putnam diagnosed defendant as having personality disorders not otherwise specified, including antisocial personality disorder and narcissistic personality disorder. Defendant’s behavior showed deceitfulness, some impulsivity, reckless disregard for the safety of others, and lack of remorse. Defendant was diagnosed as having a moderate degree of psychopathy, scoring in the 44th percentile for the prison population; in a general population or society as a whole, his score would be much higher. This increased the likelihood that defendant would reoffend. Dr. Putnam also found significant the fact that defendant was diagnosed as being alcohol dependent because alcohol lowers inhibitions. Defendant also had a history of using other drugs.
Regarding defendant’s likelihood of reoffending and engaging in sexually violent criminal behavior if released, Dr. Putnam employed the Static 99 actuarial instrument. Dr. Putnam went through each of the Static 99 factors considered, as well as other information developed by other researchers who utilized the Static 99 instrument. Defendant’s score of six placed him in the highest risk category of reoffending — not just engaging in illegal sexual behavior but actually being reconvicted. According to the Static 99, there was a 39 percent chance defendant would be reconvicted 5 years after release, a 45 percent chance 10 years after release, and a 52 percent chance 15 years after release. A factor mitigating defendant’s likelihood of reoffending was his health problems. However, Dr. Putnam also noted defendant’s health problems did not stop him from committing the offenses involving Cristy, Charlene and Rowena.
According to Dr. Putnam, the factors supporting his opinion that defendant was likely to be reconvicted included (1) defendant had been in a treatment program for reoffenders and then dropped out and reoffended; (2) the offenses with teenage girls occurred while he was married, suggesting a problem maintaining an intimate relationship with his wife; and (3) the predatory nature of the offenses, i.e., befriending the girls in casual or work relationships and then creating situations where he could put them into a position to victimize them.
Dr. Putnam was aware defendant claimed to have erectile dysfunction but discredited this claim given the fact that defendant impregnated Rowena and had successfully sexually assaulted several of his victims. Even though defendant’s wife also claimed defendant had erectile dysfunction, Dr. Putnam opined that, if defendant’s wife was being truthful, then defendant’s paraphilia was strong because he was able to obtain an erection with teenage girls but not with his wife who was an appropriately aged partner.
B. Evaluation by Dr. Vognsen
Dr. Vognsen became a licensed clinical psychologist in 1971, having received his Ph.D. in clinical psychology in 1969 from the University of Chicago. When he began his internship, he worked with severely psychotic adults who were moved from larger hospitals into smaller community programs where they were treated on an outpatient basis. During his internship, he became familiar with SVP’s. In 1997, Dr. Vognsen became an independent contractor on the SVP panel as an evaluator.
Dr. Vognsen evaluated defendant to determine whether he was an SVP, finding significant many of the same factors that Dr. Putnam noted. When conducting defendant’s SVP evaluation, Dr. Vognsen considered the Board of Prison Terms report, the Department of Health report, probation officer’s reports, charging documents, preliminary hearing transcripts (which were entered into evidence), abstracts of judgment, psychological evaluations conducted at the time of prior court proceedings, prison files, and police reports. Dr. Vognsen also evaluated defendant for approximately two and one-half hours on September 8, 2004. The doctor opined that defendant was an SVP pursuant to section 6600.
Dr. Vognsen diagnosed defendant as having paraphilia involving forced sexual behavior with nonconsenting underage girls, enticing them and then overpowering them. Defendant fixated on “girlish” adolescent cheerleaders. Dr. Vognsen considered defendant’s criminal history, noting the same things as Dr. Putnam: Beth in Wisconsin was 17 years old and a waitress at the restaurant where defendant was a manager. Defendant portrayed himself as a victim. The offenses against Yvette and Michelle were consistent with defendant’s paraphilia. Upon being released from prison for these offenses, defendant became involved with Cristy, Charlene, and Rowena. The offense against Cristy did not involve force, violence, duress or menace; however, the ones against Charlene and Rowena did. Nonetheless, the offenses against these three girls involved sexual behavior with underage girls who, to some degree, did not consent and were enticed and overpowered by defendant. Dr. Vognsen also noted that defendant attempted to impress and make Cristy, Charlene, and Rowena believe he had the power to enrich them by telling them he knew Japanese men who would pay them each $5,000 to engage in deviant sexual behavior. He also used imaginary people — “X-Man” and “Carlos” — to threaten the girls and coerce them. All of defendant’s behavior with Cristy, Charlene, and Rowena was consistent with his pattern of having nonconsensual sex with underage girls whom he manipulated and overpowered.
Dr. Vognsen found it significant that defendant would not acknowledge any of the offenses and denied all culpability. Instead, defendant claimed that he was set up or blackmailed, and that he was a victim. For example, defendant was involved in an incident in Wisconsin during which he told a woman he was a police officer because she told him she was turned on by them. When he was arrested for impersonating a police officer, he claimed that he was set up. Also, defendant claimed to have post-traumatic stress disorder but did not manifest any symptoms of having this disorder.
Dr. Vognsen was familiar with the Static 99 actuarial research tool used to predict the likelihood of being reconvicted. Defendant scored a six, which indicated that he had a high likelihood of being reconvicted, because very few people obtain scores over six, seven, or eight. Defendant’s score indicated that he had a 39 percent chance of being reconvicted 5 years after release, a 45 percent chance 10 years after release, and a 52 percent chance 15 years after release.
Additionally, Dr. Vognsen considered several other factors indicating defendant presented a high risk of reoffending. First, defendant’s history of substance abuse was significant because substance abuse lowers inhibitions, urges become stronger, and judgment becomes impaired with regard to engaging in inappropriate behavior. Second, defendant agreed to participate in a treatment program when he was released on parole, but he then dropped out of it and refused to take part in two important components of the treatment — a lie detector test and a penile plethysmograph. Third, defendant was married with two children but had a 20-year history of sexual involvement with adolescent girls. These facts indicate sexual deviancy. Fourth, on the PCLR Bob Hares psychopathy checklist, Dr. Vognsen gave defendant a score of 24.2 out of a possible 40; a score of 25 indicates increased likelihood of reoffending. And fifth, defendant’s crimes were predatory in nature and involved girls with whom he developed a casual relationship and then sexually violated.
C. The Defense
Defendant testified. Defendant was born in 1950. He joined the military when he was 18 and served in Korea and Vietnam from January 1970 through February 1972. Defendant claimed he started drinking heavily while in Korea and then began using cocaine, heroin, PCP, hashish, Valium and other drugs until 1993, when he was told by a doctor he would die if he did not stop. He began attending Alcoholics Anonymous and Narcotics Anonymous meetings. In 1981, defendant got out of the military. He stated that he was receiving 20 percent disability from the Veteran’s Administration as a result of being diagnosed in 1981 with post-traumatic stress syndrome related to his service. Defendant married in 1973 and had two children.
Defendant claimed to have an associate of science degree from Monmouth College in New Jersey, a bachelor of science degree from Northrop State University, a master’s degree in public administration from Golden State University in San Francisco, and he also claimed to have completed three years of law school at Southern School of Law. After leaving the military, he worked for the Department of Immigration and Naturalization for a year. Defendant then worked for the civil service as a secretary for about one year in Fort Irwin, California, until he was forced to resign as a result of falsifying his application regarding receiving an honorable discharge from the military. He then moved to Wisconsin.
Defendant admitted knowing Beth; however, he denied any romantic involvement or interest in her. Instead, he claimed an interest in Michelle and explained that he called Beth several times trying to develop a relationship with Michelle. On one occasion, he was at a party with Beth where alcohol was served (some of which defendant purchased) and he helped her when she was drunk and vomiting. However, defendant acknowledged writing the letters to Beth but stated Michelle wrote the letter addressed to him, which he dictated to her as she typed it.
Defendant acknowledged pleading guilty to impersonating a police officer while living in Wisconsin. He explained that he and a friend went to a bar where they met two women who claimed they “like[d] cops.” When defendant and his friend went to the women’s apartment, they were arrested.
Defendant and his family moved to Barstow in 1987 and lived there until 1991. He acknowledged that during this time he represented himself to a woman as a police officer working undercover, showing her a badge, writing her letters of love, sending her flowers, and fabricating a life that did not exist. Defendant worked at Fort Irwin at this time. After leaving Fort Irwin, he started his own business in 1992 doing no-fault divorces, cleaning services, and representing people in Equal Employment Opportunity (EEO) complaints at the Marine base and at Fort Irwin. While denying that he represented himself as an attorney, he acknowledged that his business cards contained his name followed by “Esq.” Defendant also acknowledged representing people in administrative law hearings and receiving compensation from the government for attorney services. In July 1992, defendant was booked into jail. The officers claimed that defendant said he had just passed the bar examination to be an attorney. Defendant denied such claims.
Regarding Yvette, defendant said he met her in 1991 “through some other people.” She never worked for him but did approach him with a blank contract about having modeling photographs taken by a third party. Defendant agreed to help her fill out the contract and suggested they use his house to shoot the photographs rather than going to a motel as the photographer had suggested. The contract, which was admitted into evidence, was signed by both Yvette and defendant as her agent. Defendant was present when the photographs were taken, and he received $100 and a set of the negatives for representing her. He denied asking Yvette to type a pornographic novel, attempting to blackmail her with the photographs, or ever having any physical or romantic contact with her.
Regarding Michelle, defendant acknowledged having fantasies about being with a teenage cheerleader and writing the letters to her that were entered into evidence. However, he claimed that he went into counseling as a result of his behavior with Michelle and told his wife about what had happened. While defendant acknowledged pleading guilty to a misdemeanor because of his conduct with Michelle, he stated that the police officer who investigated the case had a vendetta against him. Defendant also conceded that during the investigation, officers found his camera equipment, photographs (of Yvette), his large collection of Playboy and Penthouse magazines, adult novels, the manuscript for “Horny Hot School Girl” as well as receipts for X-rated videos entitled “Cherry Cheerleaders” and “Back to Class.”
Defendant listed several medications he took and stated he had restrictions on his daily activities, such as not doing strenuous physical activity or driving. He claimed that he had not driven since March 1994 and had to be driven to and from work.
Defendant denied having sex with Cristy, stating that he had known her parents from his time in the Army prior to her birth. Cristy’s parents became business partners with defendant in 1993 and she began working at the business shortly thereafter. According to defendant, Cristy borrowed his car and he became angry with her when he saw she had allowed her boyfriend to drive it. When defendant threatened to call the police, Cristy offered to have sex with him.
According to defendant, on another occasion Cristy found a sex survey in someone’s desk, filled it out, and talked about it with him. After Cristy filled out the sex survey, she told defendant that she knew girls who would come to the office and perform any sexual act he requested, and they made a bet on whether this was true. Defendant testified that he told Cristy he would pay her $50 if she could provide such a girl. Two days later, Cristy showed up with Charlene, who put on a tube top and short skirt without any underwear, sat on defendant’s lap, and allowed him to fondle her breasts, run his hand up her thigh, rub her buttocks, and fondle her vagina. Defendant denied penetrating Charlene’s vagina or buttocks or ever obtaining an erection. However, he claimed that Charlene offered to visit on a regular basis as long as defendant paid her.
Ten days after defendant’s “test” with Charlene, Rowena was in his office to meet with a family about a claim that their son had gotten Rowena pregnant, and at that time Rowena purportedly approached defendant about doing for him what Charlene had done. Defendant said he would think about it. The next time he spoke with Rowena was in October 1994 when she called him, stating she desperately needed $500 and was willing to have sex with him for the money. Defendant gave Rowena a blank check for $500 so she could get her van out of the shop.
Defendant testified that a year after defendant’s “test” in December 1994, Charlene approached defendant about her offer, but he told her that he did not have the money. Also, he said that he was on probation and did not want to violate his probation. Nonetheless, defendant claims that in January 1995, Charlene asked defendant to write her several love notes to make her boyfriend jealous, and defendant agreed to do so.
Defendant denied ever having sex with either Rowena or Charlene, or ever taking them to the Minn-Iowa Motel, even though defendant acknowledged renting rooms there for people who came to visit from out of town. Defendant also acknowledged sending Rowena a letter telling her that he was going to take the baby away from her because he was angry with her and knew she hung around with drug dealers and gang members. Defendant was angry, but he never intended to actually take Rowena’s baby from her. Defendant did not think he was manipulative with any of the girls. Rather, he explained that he meant to be honest with them. He believed that Cristy, Rowena, and Charlene made up the stories about him because Cristy was mad at him and Rowena was not happy about the outcome of the meeting with the family of the boy she accused of impregnating her.
As for Cristy, Rowena, and Charlene’s claims of being threatened by “Carlos” and “X-Man,” defendant did business with officers named Carlos and Xavier but denied that he had them make phone calls to anyone on his behalf. He also denied having a friend contact Cristy, identifying himself as X-Man, even though his friend claimed otherwise.
Defendant was in jail from July 10, 1997, through May 22, 2002. He moved to Virginia in August 2002 to be with his wife and take a job that was waiting for him. The job was at a group home for disabled adults. While working at the group home, defendant claims to have met Ashley. He claims that she had already filled out a job application. Later, Ashley asked him about the job, and he told her that she needed to talk to his employer, Mr. Peterson. Defendant denied ever touching Ashley, making any comments to her about her body, or taking her for a drive.
Defendant claimed that he had a “rocky” relationship with Mr. Peterson because he witnessed Peterson beat up a child at the home. Ultimately, defendant was fired. Defendant also claimed that Peterson’s nephew threatened to kill defendant and his family if he reported Peterson and the group home lost its license. According to defendant, the nephew was dating Ashley’s mother.
Defendant stated that one of the terms of his release from prison required him to be involved in therapy, participating with a counselor. He stated that he took a polygraph test as well as a penile plethysmograph test so he would not be in violation of his parole.
Defendant had no explanation for the paternity test identifying him as the father of Rowena’s child.
On July 1, 2005, the jury found that defendant was an SVP with a diagnosed mental disorder who was a danger to others and likely to engage in sexually violent predatory criminal behavior. After denying defendant’s motion for new trial, the trial court ordered defendant committed to Atascadero State Hospital for two years. He appeals.
II. EVIDENCE THAT DEFENDANT’S PRIOR CONVICTIONS INVOLVED CRIMES THAT WERE COMMITTED BY FORCE, VIOLENCE, DURESS, MENACE, OR FEAR
The petition alleged that defendant’s qualifying prior convictions were one violation of Penal Code section 286, subdivision (b)(1), and two violations of Penal Code section 286, subdivision (b)(2), each involving a separate victim. The People bore the burden of proving, beyond a reasonable doubt, that defendant suffered convictions for “a sexually violent offense against two or more victims.” (§ 6600, subd. (a)(1).) According to section 6600, subdivision (b), defendant’s violations constitute “sexually violent” offenses only if they were “committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury . . . .” (hereinafter referred to as “force, etc.”) Alone, the offenses did not constitute qualifying offenses. At defendant’s underlying trial, the People neither pleaded nor proved that defendant committed the offenses by “force, etc.” (§ 6600, subd. (b).)
Prior to trial, defense counsel challenged whether the underlying offenses qualified under section 6600 because there had been no finding of violence regarding the predicate offenses. The court deferred making any decision at that time. Later, following the probable cause hearing, defense counsel reasserted the issue by arguing that because defendant simply had been found guilty of sodomy, under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), there had been no jury finding of “force, etc.” The trial court rejected this argument, finding sufficient evidence based upon the testimony of the two experts.
On March 25, 2005, defendant brought a motion to dismiss, arguing the prior offenses did not qualify as sexually violent offenses because the abstract of judgment indicated they were nonviolent and the jury had not made a finding of violence on any of the offenses. Denying the motion, the trial court noted that section 6600 permitted going beyond the four corners of the convictions to determine whether they involved “force, etc.”
Under section 6600, subdivision (b), a sexually violent offense includes an offense defined in Penal Code section 286 if it is committed by “force, etc.” On appeal, defendant acknowledges that his three qualifying prior convictions are included in section 6600; however, he argues the trial court erred (1) in allowing evidence beyond that found by the jury or admitted by defendant to establish those convictions, and (2) in allowing reliance upon police reports to establish that the offenses were committed with the requisite “force, etc.” (§ 6600, subd. (b).) We reject his arguments for the following reasons.
To begin with, we note that section 6600, subdivision (a)(3), anticipates qualifying offenses that do not have as elements “force, etc.” It provides: “The existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Health.” (Italics added.) Here, the preliminary hearing transcripts, probation reports and some of defendant’s own writing were not only relied upon by the experts but were entered into evidence by the prosecution to establish defendant’s convictions involved “force, etc.” SVP proceedings may involve the use of multiple levels of hearsay to establish the nature of the prior offenses. (People v. Otto (2001) 26 Cal.4th 200, 206-208 (Otto).) Thus, the details of the prior offenses may be proven in probation reports and derived from police reports. (Id. at p. 207.) In Otto, the California Supreme Court explicitly rejected the argument that multiple hearsay statements contained in probation reports were inadmissible unless such statements fell within an exception to the hearsay rule. (Otto, at pp. 207-209.) The court held that under section 6600, subdivision(a)(3), the use of sentencing and probation reports to prove the details of the predicate offenses in an SVP commitment hearing does not contravene the defendant’s due process rights. (Otto, at pp. 211-214.)
While defendant acknowledges the holding in Otto, he contends that many of the documents relied upon by the experts “did not contain the level of reliability considered in Otto, including unsubstantiated police reports.” He argues that during his trial, “the aspect of ‘force, [etc.]’ was never an issue . . . [and thus he] had no reason to question witnesses about those circumstances,” or correct any misstatements about “force, etc.” in the police reports or in the presentence reports. Accordingly, he challenges the use of the police reports to establish the elements of his prior convictions.
In California, both the Supreme Court and the Courts of Appeal have consistently held that the SVPA is a civil commitment scheme. (People v. Calhoun (2004) 118 Cal.App.4th 519, 524.) The SVPA does not establish criminal proceedings. Rather, it enacts civil involuntary confinement proceedings. (In re Parker (1998) 60 Cal.App.4th 1453, 1461.) The declared legislative intent of the SVPA was to enact “a ‘civil commitment’ scheme applicable to persons who are to be viewed ‘not as criminals, but as sick persons’ . . . . [Citations.]” (People v. Calhoun, supra, 118 Cal.App.4th at p. 524.) Therefore, individuals presented with possible civil commitment under the SVPA do not enjoy the constitutional rights expressly afforded criminal defendants, including the federal and state constitutional right to confrontation. (Otto, supra, 26 Cal.4th at p. 214.)
Nevertheless, civil commitment involves a significant deprivation of liberty. Consequently, a defendant in an SVP proceeding is entitled to due process protection. (Otto, supra, 26 Cal.4th at p. 209.) Due process under the SVPA, however, is not coextensive with the Sixth Amendment confrontation right that applies to criminal proceedings. Rather, it is measured by the standard applicable to civil proceedings. (People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 154.) The due process clause requires only that the procedure adopted comport with fundamental principles of fairness and decency. It does not guarantee the citizen of a state any particular form or method of procedure. (In re Parker, supra, 60 Cal.App.4th at p. 1462.) The court thus engages in a “flexible balancing standard” to determine what process is due. (In re Malinda S. (1990) 51 Cal.3d 368, 383.)
The existence of prior convictions may be shown by documentary evidence. (§ 6600, subd. (a)(3).) The fact of a conviction alone, however, may not be adequate to meet the “sexually violent offense” criterion. Hence, evidence of the details underlying the commission of an offense that led to a conviction may be necessary. Accordingly, as stated above, the SVPA permits such details, including a predatory relationship with the victim, to be “shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentence reports, and evaluations by the State Department of Mental Health.” (§ 6600, subd. (a)(3).)
In permitting the use of probation and sentencing reports, the Legislature intended that multiple-level hearsay would be admissible in SVP proceedings. (Otto, supra, 26 Cal.4th at pp. 206-208, 211.) The apparent intent of this express statutory exception to the hearsay rule was to relieve victims of the burden and trauma of testifying about the details of the crimes underlying the prior convictions. (Id. at p. 208.) Furthermore, the SVP proceeding may occur years after the predicate offense or offenses. Accordingly, the Legislature may have also been responding to a concern that victims and other percipient witnesses would no longer be available. (Ibid.)
As noted above, in Otto, our Supreme Court considered whether the admission of victims’ hearsay statements in an SVP proceeding violates the defendant’s due process right to confrontation. Applying the civil due process balancing standard, the court held it did not. The court first noted that the private interests affected by the official action are the significant limitations on the defendant’s liberty, the stigma of being classified as an SVP, and subjection to unwanted treatment. (Otto, supra, 26 Cal.4th at p. 210.) Next, the court considered the risk of an erroneous deprivation of such interests through the procedures used. The court concluded that the victim hearsay statements must contain “special indicia of reliability to satisfy due process.” (Ibid.) However, the court also found that under the circumstances generally present in an SVP proceeding, this requirement would almost always be met. (Id. at p. 211.)
According to the Otto court, the “most critical factor demonstrating the reliability of the victim hearsay statements” is that the defendant “was convicted of the crimes to which the statements relate.” (Otto, supra, 26 Cal.4th at p. 211.) The SVPA requires conviction of a sexually violent offense against two or more victims. (§ 6600, subd. (a)(1).) Thus, some portion, if not all, of the alleged conduct will have been already either admitted in a plea or found true by a trier of fact after trial. (Otto, supra, at p. 211.) Additionally, consideration of hearsay statements contained in presentence reports is not unique to the SVPA. By statute, defendants are required to have an opportunity to review and challenge inaccuracies, including victim statements, contained in the report. (Otto, supra, at pp. 213-214.)
The court further concluded that reliance on victim hearsay statements does not deny the defendant any right of confrontation. There is no right to confrontation under the state and federal confrontation clause in civil proceedings. Rather, it is a due process right. (Otto, supra, 26 Cal.4th at p. 214.) Under the SVPA, such due process is preserved. The defendant has the right to cross-examine any prosecution witness who testifies, to call his or her own witnesses, to challenge the documentary evidence admitted, and to thoroughly present his or her side of the story. (Otto, supra, at p. 214; People v. Superior Court (Howard), supra, 70 Cal.App.4th at pp. 154-155.)
The Otto court also found that the government’s interest in protecting the public from those who are dangerous and mentally ill could potentially be impeded by requiring live victim testimony. The court noted that the SVP proceeding occurs at the end of the defendant’s sentence, which may be years after the events in question. (Otto, supra, 26 Cal.4th at p. 214.) Moreover, if civil commitment of SVP’s can be obtained only in cases where the conviction record was extensive and included victim testimony as to the details of the sexually violent offense, the state would never be able to meet its burden in those cases where the defendant pleaded guilty before the preliminary hearing or the victim’s testimony was not sufficient to establish the details of the offense as required by the SVPA. (Otto, supra, at pp. 214-215.)
Finally, the court concluded that reliance on hearsay evidence does not impede the defendant’s dignitary interest in being informed of the nature, grounds, and consequences of the SVP commitment proceeding or disable the defendant from presenting his or her side of the story before a responsible government official. (Otto, supra, 26 Cal.4th at p. 215.)
Accordingly, Otto refutes defendant’s contention that the police reports were inadmissible as hearsay. As noted, in Otto the Supreme Court stated: “By permitting the use of presentence reports at the SVP proceeding to show the details of the crime, the Legislature necessarily endorsed the use of multiple-level-hearsay statements that do not otherwise fall within a hearsay exception.” (Otto, supra, 26 Cal.4th at p. 208, italics added.) Therefore, the court concluded, “the hearsay statements at issue fall within an express statutory exception . . . .” (Id. at p. 209; see also, People v. Fraser (2006) 138 Cal.App.4th 1430, 1444; People v. Angulo (2005) 129 Cal.App.4th 1349, 1367-1368.)
Moreover, the hearsay rule only applies “[e]xcept as provided by law.” (Evid. Code, § 1200, subd. (b).) Since, according to Otto, section 6600, subdivision (a)(3) created “an express statutory exception” that applies to hearsay statements in police reports, the trial court properly overruled defendant’s hearsay objection.
We also reject defendant’s claims that his prior convictions only consisted of the facts reflected in the jury verdicts or admitted by defendant (Blakely, supra, 542 U.S. 296) and that he was denied his right to confront witnesses (Crawford v. Washington (2004) 541 U.S. 36 (Crawford)). (People v. Carlin (2007) 150 Cal.App.4th 322, 332 [Blakely does not apply to SVP proceedings, nor does the SVPA “require that the People plead and prove substantial sexual conduct at the time of the underlying conviction”]; People v. Angulo, supra, 129 Cal.App.4th at pp. 1367-1368 [Crawford was based only upon the Sixth Amendment right of confrontation, which does not apply in civil commitment proceedings, and the defendant theoretically had an opportunity to confront and cross-examine the hearsay declarants by taking their depositions under the Civil Discovery Act, which applies in SVPA proceedings].)
III. ADMISSION OF EXPERT TESTIMONY TO ESTABLISH “FORCE, ETC.”
Defendant contends that it was improper for the expert psychologists to opine that the sodomy offenses were committed by “force, etc.” Instead, he argues that the proper way to prove the use of “force, etc.” was for the victim or eyewitnesses to testify about what occurred. According to defendant, the opinions of the two experts amounted to nothing more than an expression of their beliefs about how the case should be decided. He also complains that the admission of their testimonies was prejudicial because their opinions were the only evidence that the sodomy crimes were committed by defendant’s use of “force, etc.”
Although the People contend that defendant has waived this issue by failing to raise it at the trial level (People v. Fulcher (2006) 136 Cal.App.4th 41, 53-54 (Fulcher)), we choose to address the merits and therefore make no comment on the waiver issue. Even if we were to consider the waiver issue and find in favor of the People, defendant raises the ineffective assistance of counsel. Thus, for practical reasons, we deal directly with the issue.
To the extent that defendant’s argument is merely another way of arguing his first issue, i.e., use of hearsay documents to establish “force, etc.” was improper, we reject it. As we have already noted, section 6600, subdivision (a)(3) provides: “The existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Health.” (Italics added.) Clearly, the statute does not require the production of the victims, or other witnesses of the offenses, to prove the existence of defendant’s prior convictions. (Fulcher, supra, 136 Cal.App.4th at pp. 49-50; Otto, supra, 26 Cal.4th at p. 208.)
Nonetheless, we are mindful of the potential prejudice defendant may suffer when detailed or aggravated hearsay statements are presented to the jury under the guise of supporting an expert’s opinion. Here, Drs. Putnam and Vognsen relied on various hearsay documents, including police reports generated from defendant’s prior offenses, in reaching their opinions. To the extent that either expert attempted to testify in detail about the contents of those reports, we note that defense counsel promptly objected and the trial court correctly sustained the objection, ordered the testimony stricken, and admonished the jury to disregard it. The court further said: “The police reports are not going to be read, that’s all there is to it. If it’s a contract, that’s a different subject. A whole different credibility applies to that evidence. [¶] The doctor is still up here on the stand, and reading police reports to this jury. He can state his opinion. State what the opinions are based on. Not going to be reading police reports.”
As our state Supreme Court has explained, “‘[a]n expert may generally base his opinion on any “matter” known to him, including hearsay not otherwise admissible, which may “reasonably . . . be relied upon” for that purpose. [Citations.] On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them. However, prejudice may arise if, “‘under the guise of reasons,’” the expert’s detailed explanation “‘[brings] before the jury incompetent hearsay evidence.’”’ [Citations.] In this context, the court may ‘“exclude from an expert’s testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.”’ [Citation.] [¶] Nonetheless, ‘[b]ecause an expert’s need to consider extrajudicial matters, and a jury’s need for information sufficient to evaluate an expert opinion, may conflict with an accused’s interest in avoiding substantive use of unreliable hearsay, disputes in this area must generally be left to the trial court’s sound judgment.’ [Citation.]” (People v. Catlin (2001) 26 Cal.4th 81, 137.)
Given the language in section 6600, subdivision (a)(3), it was appropriate for Drs. Putnam and Vognsen to base their opinions in part on the contents of the police reports (Otto, supra, 26 Cal.4th at p. 207); however, they could not recount the details of such reports. Although defendant claims prejudicial error, we need not determine whether the experts’ accounts of the contents of the police reports went beyond what is permissible, because even if error occurred it was not prejudicial. To begin with, we note that both experts were charged with the task of determining whether defendant was an SVP. In making such determination, each expert had to first determine whether defendant had been convicted of sexually violent offenses involving two or more victims. In order to do so, the experts were allowed to review “documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Health.” (Italics added.) (§ 6600, subd. (a)(3).)
Second, we note that in addition to reviewing the police reports, the experts reviewed the probation officer’s report and the preliminary hearing transcript of Rowena’s and Charlene’s descriptions of defendant sodomizing them to conclude force was involved. The jury received this transcript, and could determine for themselves whether defendant employed “force, etc.”
Third, the jurors were instructed regarding expert witness testimony. Specifically, they were told that Dr. Putnam was going to “render an opinion about whether certain offenses were qualifying offenses under Criteria 1, and that’s the doctor’s opinion. I think that he has testified to sufficient expertise in this particular field to render that opinion, and I think that opinion could be helpful to you. It’s not controlling on you. You’re free to form your own opinions. It’s something for you to consider.” The jury was further instructed regarding expert testimony during final instructions.
Finally, we note that defendant was given ample opportunity to cross-examine the experts about their opinions, specifically, their opinions that the offenses involved “force, etc.” (Fulcher, supra, 136 Cal.App.4th at pp. 54.) In Fulcher, we rejected a similar argument that the experts’ conclusions were unfounded by finding the argument concerned the weight of their testimony and not the admissibility of it. (Id. at pp 53-54.) Here, defendant did cross-examine the experts extensively. Moreover, he testified to his version of what had occurred with the girls in an attempt to explain the evidence against him.
For these reasons, we reject defendant’s contentions.
IV. DEFENDANT’S RIGHT TO CUSTODIAL CREDITS
On July 1, 2005, the jury found defendant to be an SVP. On July 22, 2005, the trial court was prepared to commit defendant to Atascadero State Hospital; however, defendant informed the court the he did not want the court to commit him because he intended to file a motion for new trial. The court apprised defendant that he only accrued time on his two-year commitment after being committed to a state hospital. Defendant acknowledged that he would not receive any credit towards his commitment while he was in jail litigating the motion. The following discussion occurred:
“THE COURT: The two-year estimate that I’m to impose will run from the date I impose it. I have not imposed it as of yet. No credit of time served, as I read these. I agree with that that for every day this matter is delayed it’s a day, that’s assuming that [defendant] ends up going to Atascadero, that he will not be credited. The two years will run from the date that I send him there, no sooner. So if he wants to stay in jail filing motions, understanding that he’s not getting any credits on that, to his detriment, certainly not to any
“[DEFENSE ATTORNEY]: [Defendant], you understand that
“[DEFENDANT]: Yes, I do.
“[DEFENSE ATTORNEY]: — understand that if and when the Court sends you to Atascadero for two years, you will not be getting credit for the time sitting here at West Valley, understand that?
“[DEFENDANT]: Yes. I’m aware of that.
“[DEFENSE ATTORNEY]: And with that in mind, you still agree to pursue the motions or motion for new trial?
“[DEFENDANT]: Yes.
“[DEFENSE ATTORNEY]: Very well, Your Honor.
“THE COURT: Now, clearly it’s a different standard than we have in a criminal case. It would be the standard that we have in a civil matter, so it will be a motion for judgment notwithstanding the verdict.”
After the prosecution opposed any continuance, the court inquired if there was any reason for not sending defendant to Atascadero pending litigation of his motion for new trial so he could accrue time towards his two years. When defense counsel informed the court that defendant preferred to remain in jail, the following exchange occurred:
“THE COURT: Well, he’s going to remain in a custodial situation, whether State Hospital or county jail.
“[THE PROSECUTION]: Right. Your Honor
“THE COURT: I fail to see why we didn’t — why he
“[DEFENSE COUNSEL]: May we approach, your Honor?
“THE COURT: No. If he wants to stay in county jail, realizing that he’s not going to get any kind of credits should he lose his motion — I can’t understand why someone would want that, but if that’s the position — I’d appreciate it if you would consult with him, make sure he understands that. I’m still thinking about sending him to Atascadero pending the motion.
“[THE PROSECUTION]: Thank you.
“(Whereupon there was a pause in the proceedings.)
“[DEFENSE COUNSEL]: Your Honor, just so the record is clear, I have further consulted with [defendant], he does completely understand what the Court has articulated, still his desire [is] to remain here in San Bernardino County while that motion is pending.
“One thing that he did point out, and I will just say that to the Court and submit, is that it would be much easier for me to get together and meet for the formation or preparation of that motion if he does remain at West Valley.
“With that, I would submit, your Honor.”
Based on the above, the trial court fully explained to defendant that he would not receive credit towards his two-year commitment so long as he remained housed in the jail facility pending litigation of his motion for new trial. Also, defendant was informed that he could be sent to Atascadero pending litigation of his motion so that he could obtain credit towards his two-year commitment.
On September 9, 2005, defendant sought and was appointed new counsel for the purpose of bringing a new trial motion. On September 16, 2005, and again on December 15, 2005, defendant received new counsel for the purpose of bringing his new trial motion. On January 4, 2006, the trial court denied defendant’s motion to “fire newly appointed counsel.” On the next day, defendant began a pro se campaign of filing motions and letters seeking various remedies in different courts.
On July 20, 2006, counsel appointed for the purpose of the new trial motion argued it before the court, and the court denied it. Defendant’s new counsel informed the court he had read the entire record of the SVP proceedings and opined that defendant’s refusal to waive time resulted in trial counsel’s inability to interview witnesses and be more prepared. Counsel also stated that the presentation of the hearsay evidence by the prosecution to establish “force, etc.” was appropriate because of the civil nature of the proceedings. Finally, counsel acknowledged that defendant was not entitled to credit under the SVP laws for time in county jail because he had not been “committed,” and suggested that the commitment be imposed so he could initiate an appeal.
After the trial court denied the motion for new trial, defendant’s original trial counsel took over and asked the court to consider his motion for new trial. The court agreed to do so. After listening to argument, the court denied the motion. The court then committed defendant to Atascadero State Hospital as a sexually violent predator. Defense counsel requested that defendant receive credit towards his commitment for the time he served in jail. The court denied the request.
On appeal, defendant challenges the trial court’s decision to delay committing him to a state hospital pending his postjudgment, pro. per. litigation. He argues that his commitment should run from the date of the jury’s verdict (July 1, 2005) instead of the date the court issued the commitment order (July 20, 2006).
In 2006 at the time of defendant’s commitment, section 6604.1, in relevant part, provided: “(a) The two-year term of commitment provided for in Section 6604 shall commence on the date upon which the court issues the initial order of commitment pursuant to that section. The initial two-year term shall not be reduced by any time spent in a secure facility prior to the order of commitment.” (Italics added.) Defendant acknowledges the language in the statute; however, in his brief, he claims that “[t]his section did not contemplate, and therefore does not control, his situation where the court delayed issuing a commitment order for 13 months.” Rather, he argues that (1) “the statute imposed strict timing constraints both pre- and post-commitment”; (2) “[p]ost-verdict, the State’s only interest in continuing [defendant’s] custody was so that he could [be] placed . . . for treatment and confinement”; (3) the SVP statute contemplated the commitment order coinciding “exactly or closely with the SVP finding”; (4) the state bears the burden for any failure, postverdict, to place defendant in a custodial situation that is equivalent to the Department of Mental Health facilities for SVP’s; (5) ambiguity in the statute inures to the benefit of defendant; (6) case authority considering whether pre-commitment custody time should be credited is inapplicable; (7) & (8) “as a matter of policy,” allowing the commitment to begin only after the order is issued “would [(a)] serve as an invitation to delay issuing such orders” and (b) interfere with defendant’s “due process rights to pursue proper, post-verdict legal remedies”; and (9) “sanctioning [defendant’s] creditless 13-months of post-verdict custody violates equal protection because it imposes disparate treatment on similarly situate[ed] defendants.”
In 2006, after defendant’s order of commitment, section 6604.1 was amended. (Stats. 2006, ch. 337 (S.B.1128), § 56, eff. Sept 20, 2006; Initiative Measure (Prop. 83, § 28, approved Nov. 7, 2006, eff. Nov. 8, 2006).)
As noted above, the language in the statute is clear. The trial court, as well as defendant’s counsel, informed defendant that he would not receive credit for time served in jail pending is posttrial litigation. Nonetheless, defendant chose to delay issuance of the commitment order. We find no error. Moreover, to the extent any error did occur, defendant may not raise the error on appeal under the invited error doctrine. (People v. Mays (2007) 148 Cal.App.4th 13, 37; California Coastal Com. v. Tahmassebi (1998) 69 Cal.App.4th 255, 260 [“‘“It is settled that where a party by his conduct induces the commission of an error, under the doctrine of invited error he is estopped from asserting the alleged error as grounds for reversal”’”].)
Regarding defendant’s reliance on federal circuit court decisions, we are not bound by the decisions of the lower federal courts. (People v. Smith (2003) 110 Cal.App.4th 1072, 1077, fn. 4, citing People v. Cleveland (2001) 25 Cal.4th 466, 480, and People v. Avena (1996) 13 Cal.4th 394, 431.) Regarding his policy arguments, we reject them outright given the fact that he caused his own delay from being committed and was only treated differently because he demanded to be treated differently. There was no disparate treatment in this case.
V. DISPOSITION
The SVP determination and resulting SVP commitment order are affirmed.
We concur: RAMIREZ P.J., GAUT J.