Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. CR18293. Carl E. Davis, Judge. (Retired judge of the San Bernardino Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Phillip I. Bronson, 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, Barry Carlton, Supervising Deputy Attorney General, and Bradley A. Weinreb, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut, J.
In this consolidated appeal, defendant Robert Hobbs appeals from two orders of recommitment entered following jury findings on May 4, 2006, and October 19, 2006, in separate trials, in which each jury determined that defendant was a mentally disordered sex offender (MDSO) who remained a substantial danger to the community because of his predisposition to commit sexual crimes. (Welf. & Inst. Code, § 6316.2.) Based on the May 4, 2006, jury finding, the trial court ordered defendant recommitted to Patton State Hospital (Patton) until December 25, 2006. Following the jury’s finding in the second trial on October 19, 2006, the trial court ordered defendant recommitted to Patton until December 25, 2008.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
Effective January 1, 1982, the MDSO statutory scheme (former §§ 6300-6330) was repealed (Stats. 1981, ch. 928, § 2, p. 3485) but remains applicable to MDSOs, such as defendant, committed prior to repeal of the MDSO law. (Baker v. Superior Court (1984) 35 Cal.3d 663, 665-667.) For convenience, we refer to the repealed sections as if they were not repealed. The Legislature repealed the MDSO commitment procedures in order to treat sexual offenders more harshly. (Id. at p. 666.) The Legislature intended that those convicted of a sex offense after the MDSO law was repealed, who were believed to have a serious, substantial, and treatable mental illness, be transferred to a state hospital for treatment under Penal Code section 2684. (Baker v. Superior Court, supra, at p. 667.) Later, the Legislature enacted the Sexually Violent Predator Act (SVPA) in 1995, and the mentally disordered offender (MDO) statutory scheme in 1985, to provide for civil commitment of offenders with mental disorders who posed a danger to the public. (In re Howard N. (2005) 35 Cal.4th 117, 127 (Howard).)
Defendant filed a petition for writ of habeas corpus seeking constructive notice of appeal as to his untimely notice of appeal of the May 4, 2006, order. This court granted the petition and deemed defendant’s notice of appeal timely. This court further sua sponte ordered defendant’s appeals of the May 4, 2006, and October 19, 2006, orders consolidated, with case No. E041018 designated the master file.
Defendant contends as to both orders of recommitment that the trial court erred in failing to give sua sponte a jury instruction and finding that, as a result of defendant’s mental disorder, he had serious difficulty in controlling his sexually criminal behavior. Defendant also contends there was insufficient evidence that he had serious difficulty in controlling his sexually criminal behavior. Defendant further challenges Drs. Mark Peterson’s and Munir Sewani’s expert testimony.
We reject defendant’s contentions and affirm the judgment.
1. Factual and Procedural Background
In 1981, defendant was arrested and charged with molesting Jason, who was seven years old, and Thomas, who was eight years old. The incidents involved mutual masturbation and oral copulation. Following his arrest, defendant admitted to Sheriff’s Deputy Sandra Lee Shuster that he had molested at least 50 children in Arizona and that he was interested in boys ages 8 to 12. Defendant moved to California to try and stop molesting children, but after moving to California he started reoffending again and was caught in 1981 when he was 18 years old.
In 1990, defendant was conditionally released as an outpatient from Patton, where he had been committed as an MDSO. Eight months later, he was returned to Patton because he had been leering at young boys. He had also moved his residence without permission in violation of Patton’s conditional release rules.
After returning to Patton in 1991, defendant violated various hospital rules of behavior. He stole food in 1994; he provided pornographic material to another patient in 1995; he propositioned a young male staff member to have oral sex with him in 1995; he masturbated in front of a male patient after the patient refused to orally copulate him in 1997; and he made verbally aggressive remarks to the staff in 2006.
In connection with both recommitment trials, Patton treatment staff and psychologists evaluated defendant and concluded defendant had a mental disorder; as a result of the disorder, defendant had difficulty controlling his conduct; and defendant would likely reoffend if released.
(a) First Trial
During the May 2006 recommitment trial (first trial), Dr. Roger Karlsson, a licensed psychologist who evaluated defendant, testified that defendant had a mental disorder and presented a high risk of engaging in sexual and violent behavior if released. Dr. Karlsson concluded defendant suffered from antisocial-personality disorder and narcissistic-personality disorder, and had paranoid personality traits.
Defendant told Dr. Karlsson that “the reason he moved from Arizona to California was that because he had decided to stop molesting children. He also told me that he tried to kill himself five times, because that is what he felt was his choice; either continue molesting children or kill himself.” According to Dr. Karlsson, defendant’s “coping strategy was to go out and re-offend again” when under stress.
Dr. Karlsson concluded defendant was not a monster; “he could simply not stop himself.” Sometimes he was insightful, remorseful and empathetic, but when under stress or angry he would reoffend. He told Dr. Karlsson on one occasion, when angered at being confronted with his behavior, that his victims liked what he had done to them; that he did not violate them; and he was actually helping them.
Cynthia Siples testified that while program director at Patton in the early 1990’s, defendant conceded he would reoffend. While preparing an educational pamphlet about child molesters for parents, defendant attached a personal letter about himself stating that the reason he knows so much about child molesters is because he is one “[a]nd I’ll always be a child molester.”
Dr. John Kinsman, a licensed psychologist, who was the staff psychologist on defendant’s unit, testified that defendant was committed to Patton because he had been diagnosed with pedophilia, in which defendant had a predisposition to engage in sexual conduct with young boys. Defendant was also diagnosed with polysubstance dependence, which was in remission. Dr. Kinsman concluded defendant had a high risk of reoffending and the community needed to be protected from defendant because of his mental disorder.
Dr. Kinsman stated he did not have sufficient data to determine if defendant was currently suffering from pedophilia, but believed he had not fully dealt with the issues that resulted in pedophilia. A treatment note written within the last five years stated that defendant was attracted to young, boyish-looking male members of the Patton treatment staff and he propositioned one of those people. Dr. Kinsman encouraged defendant to participate in a voluntary sex offender treatment program at Patton, but defendant refused.
Dr. Sewani, a licensed psychologist, who worked with Patton patients in an outpatient mental health treatment and conditional release program known as CONREP, testified he evaluated defendant in 2005 to see if he would be suitable for outpatient placement. Dr. Sewani concluded defendant posed a substantial risk of reoffending if released. In the past, defendant coped with stress and humiliation by molesting young boys. Because defendant was angry at the conditional release program, CONREP, which revoked his release in 1991, and had rationalized and distorted what he had done to cause his return, he posed a great danger.
Dr. Sewani believed defendant would be stressed if released, and in turn would cope by reoffending. When asked about defendant’s concerns with control, Dr. Sewani stated: “That he has not learned healthy ways of developing healthier relationships with individuals. The only way he feels he can exercise control in a relationship is to be angry and resentful, and victimize younger children.” According to Dr. Sewani, defendant was predisposed to act out against young boys in a sexual manner, especially when he was under stress.
Dr. Peterson was defendant’s treating psychiatrist at Patton. He testified at the first trial that defendant was appropriately diagnosed as having pedophilia. Dr. Peterson believed defendant had a mental disorder that predisposed him to commit sexual offenses and that there was a substantial likelihood defendant would reoffend if released. Defendant’s refusal to participate in the sex offender program was the most reliable predictor of recidivism. Defendant had said about a year ago that there was no way of being certain that the children he molested did not enjoy what he did to them. He also said he would like to see Patton burn to the ground. Dr. Peterson stated that pedophilia is a lifelong disorder and defendant’s pedophilia disorder was not in remission.
On May 4, 2006, the jury found that defendant should be civilly committed as an MDSO. The trial court ordered defendant’s term of commitment to Patton extended until December 25, 2006.
(b) Second Trial
During the October 2006 recommitment trial (second trial), Dr. Sewani testified he had contact with defendant between 1993 or 1994 and May 2005. Dr. Sewani diagnosed defendant as having pedophilia, along with other personality disorders, including being antisocial and narcissistic and having a sense of entitlement and grandiosity, which made it more difficult for defendant to cope with and control his problems. According to Dr. Sewani, defendant’s disorders were long-term problems. Defendant had engaged in sex with children younger than him since he was 12 years old. Defendant still posed a substantial risk of molesting children.
Dr. Peterson testified, as he did at the first trial, that defendant had pedophilia along with polysubstance dependence. Defendant’s other antisocial personality disorder, characterized by instances of breaking the law, disregard for others’ rights, deceitfulness, lack of remorse, impulsiveness, and aggression, impeded defendant’s ability to deal with stress and his pedophilia disorder. He tended to defy and break rules; disregard the rights of others; lacked empathy for others; and had shown a consistent pattern of impulsive hostility, consisting primarily of verbal arguments and aggressiveness. The various instances in which defendant acted out at Patton were indicative of stressors that would put defendant at risk of acting out by molesting children. Dr. Peterson concluded defendant posed a substantial risk of reoffending.
On October 19, 2006, the jury found that defendant should be civilly committed as an MDSO. The trial court ordered defendant’s term of commitment to Patton again extended until December 25, 2008. For purposes of this appeal, the two cases have been consolidated.
2. Serious Difficulty Controlling Sexually Criminal Behavior
Defendant contends the trial court committed prejudicial error by failing to instruct the jury that in order to find defendant should be recommitted the jury must find that defendant has serious difficulty controlling his sexually criminal behavior. The trial court gave CALJIC 4.18, which defendant claims did not comport with due process principles because it did not include any instruction on lack of the volitional control element.
(a) Forfeiture of Jury Instruction Challenge
The People argue defendant waived this contention by not objecting to the instruction in the lower court or requesting clarification or amplification. Generally, “[i]f defendant believed the instructions were incomplete or needed elaboration, it was his obligation to request additional or clarifying instructions. [Citation.] His failure to do so waives the claim in this court. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 514; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1189.)
Defendant argues that, although he did not request an instruction on the volitional control element at trial, the court was required to give it sua sponte and therefore defendant can raise the objection at any time. (People v. Wickersham (1982) 32 Cal.3d 307, 324-326, overruled on other grounds in People v. Barton (1995) 12 Cal.4th 186, 201; People v. Smith (1992) 9 Cal.App.4th 196, 207, fn. 20.)
We will address the instruction challenge on the merits since there is no forfeiture when substantial or constitutional rights of a defendant are asserted. (People v. Van Winkle (1999) 75 Cal.App.4th 133, 139-140; Pen. Code, § 1259; People v. Smith, supra, 9 Cal.App.4th at p. 207.) Here, defendant complains that the trial court committed constitutional due process error by failing to instruct the jury on a requisite element, the lack of volitional control.
We note: “Although the loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a ‘waiver,’ the correct legal term for the loss of a right based on failure to timely assert it is ‘forfeiture,’ because a person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the ‘intentional relinquishment or abandonment of a known right.’” (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)
(b) Volitional Control Instruction
An MDSO is defined as any person who by reason of mental defect, disease, or disorder, is predisposed to the commission of sexual offenses to such a degree that he is dangerous to the health and safety of others. (§ 6300.)
In order to extend defendant’s commitment as an MDSO under section 6316.2, the prosecution must prove not only that defendant had a mental disorder and future dangerousness, but also that defendant, as a result of his mental disorder, had serious difficulty controlling his behavior. (Kansas v. Crane (2002) 534 U.S. 407, 412-413; Kansas v. Hendricks (1997) 521 U.S. 346, 357-358; People v. Williams (2003) 31 Cal.4th 757, 759 (Williams); Howard, supra, 35 Cal.4th at p. 135.)
Cases have interpreted other civil commitment statutes, including the MDO commitment scheme, the SVPA, and the Juvenile Extended Detention Act (EDA), in a similar fashion, as requiring that the person subject to recommitment has serious difficulty in controlling dangerous behavior. (Kansas v. Crane, supra, 534 U.S. at pp. 412-413; Kansas v. Hendricks, supra, 521 U.S. at pp. 357-358; Williams, supra, 31 Cal.4th at p. 759; Howard, supra, 35 Cal.4th at p. 135; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1156-1158 (Hubbart); People v. Hubbart (2001) 88 Cal.App.4th 1202, 1218-1219; In re Lemanuel C. (2007) 41 Cal.4th 33, 44, 46-48 (Lemanuel); People v. Putnam (2004) 115 Cal.App.4th 575, 581-582 (Putnam); People v. Lopez (2004) 123 Cal.App.4th 1306, 1315.) Evidence is required to establish not only that a person has exhibited dangerous behavior due to a mental disorder, but also that the mental disorder, as opposed to a volitional decision, prevents the person from controlling his or her dangerous behavior. The person must be unable to control dangerous behavior because of a mental disorder, not merely because the person concludes there is no need to do so under the circumstances. (Kansas v. Crane, supra, 534 U.S. at pp. 412-413; Howard, supra, 35 Cal.4th at p. 135; Lemanuel, supra, at pp. 44, 46-48.)
Penal Code section 2960 et seq.
Section 6600 et seq.
Section 1800 et seq.
In both the first and second jury trials, in which defendant’s commitment to Patton was extended, the trial court gave CALJIC No. 4.18. In the first trial, the court instructed: “In this case, you shall decide whether the defendant, by reason of a mental disease, defect, or disorder, is predisposed to the commission of sexual crimes to such a degree that he/she presents a substantial danger of bodily harm to others. [¶] The People have the burden of proving beyond a reasonable doubt that the [defendant]: [¶] (1) Has a mental disease, defect, or disorder; and [¶] (2) As a result of this mental condition is predisposed to the commission of sexual crimes; and [¶] (3) Represents a substantial danger of bodily harm to others.” During the second trial, the court instructed the jury similarly.
Defendant complains that the volitional impairment requirement was missing from this instruction. Therefore the instruction, CALJIC No. 4.18, as given, did not satisfy due process under Williams, supra, 31 Cal.4th 757 and Howard, supra, 35 Cal.4th 117. In Williams, an SVPA case, the defendant complained that the trial court erred in rejecting his request for an instruction that the jury must find the defendant had serious difficulty in controlling his behavior. The Williams court disagreed, explaining that, “By its express terms, the SVPA limits persons eligible for commitment to those few who have already been convicted of violent sexual offenses against multiple victims (§ 6600, subd. (a)(1)), and who have ‘diagnosed mental disorder[s]’ (ibid.) ‘affecting the emotional or volitional capacity’ (id., subd. (c)) that ‘predispose[ ] [them] to the commission of criminal sexual acts in a degree constituting [them] menace[s] to the health and safety of others’ (ibid.), such that they are ‘likely [to] engage in sexually violent criminal behavior’ (id., subd. (a)(1)). This language inherently encompasses and conveys to a fact finder the requirement of a mental disorder that causes serious difficulty in controlling one’s criminal sexual behavior. The SVPA’s plain words thus suffice ‘to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.’ (Kansas v. Crane, supra, 534 U.S. 407, 413.)” (Williams, supra, at pp. 759-760, italics added.)
Section 6600, subdivision (c) states: “‘Diagnosed mental disorder’ includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.”
The Williams court further concluded that, “even if instructional error had occurred, the Court of Appeal properly found no prejudice. On the evidence presented at defendant’s trial, no rational jury could have failed to find he harbored a mental disorder that made it seriously difficult for him to control his violent sexual impulses. Hence, the absence of a ‘control’ instruction was harmless beyond a reasonable doubt.” (Williams, supra, 31 Cal.4th at p. 759.)
After Williams was decided, in Putnam, supra, 115 Cal.App.4th 575, an MDO case, the defendant likewise argued the jury instructions given did not comport with due process because they did not state that the jury was required to find that defendant had serious difficulty in controlling his violent criminal behavior. (Id. at p. 579.) Relying on Williams, the Putnam court held that “the trial court was not obligated to give additional instructions sua sponte requiring that the jury find appellant to be unable to control his violent behavior. We do not reach the issue whether such instructions might be appropriately given if requested (see Williams, supra, 31 Cal.4th at pp. 778-780 (conc. opn. of Kennard, J.)), but we do hold that they were not required by due process, and that they were not mandated in the absence of any request.” (Putnam, supra, at p. 583.) The court reasoned that, as in Williams, the need for a finding of volitional control could be implied from the jury instructions. (Putnam, supra, at p. 581-582.)
Defendant argues Putnam is distinguishable, because in Putmam, the instructions given required the jury to find that defendant had “‘an illness or disease or condition that substantially impair[ed] [his] thoughts, perception of reality, emotional process, or judgment, or which grossly impair[ed] [his] behavior.’” (Putnam, supra, 115 Cal.App.4that p. 582.) The jury was also required to find “‘overt signs and symptoms of the severe mental disorder’ were not under control.” (Ibid.) While the Putnam instructions differ from those given in the instant case, the same rationale adopted in Williams and Putnam forecloses the argument defendant makes here. (Putnam, supra, at p. 581.)
Here, as in Putnam, defendant did not request an instruction on the volitional control requirement. Also, by its express terms, the MDSO law limits persons eligible for commitment to those who have already been convicted of a felony, and who have a mental defect, disease, or disorder that predisposes them to commit sexual offenses to such a degree that they are dangerous to others. (§§ 6300, 6316.1.) The language in sections 6300 and 6316.2 inherently encompasses and conveys to the fact finder the requirement of a mental disorder that causes serious difficulty in controlling one’s criminal sexual behavior. The MDSO’s plain words suffice to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. (Kansas v. Crane, supra, 534 U.S. atp. 413; Williams, supra, 31 Cal.4th atp. 759.)
Defendant cites Howard, an EDA case decided after Williams and Putnam,for the proposition that an instruction on the lack of volitional control is required in an MDSO case. In Howard, the court concluded that the EDA was constitutional in that it could be construed as implicitly containing the requirement of serious difficulty in controlling dangerous behavior. (Howard, supra, 35 Cal.4that pp. 132-133.) The court in Howard further held that any error in failing to give a “control” instruction was prejudicial error since the evidence was insufficient to conclude that the jury likely would have found the defendant had serious difficulty controlling his dangerous behavior. (Id. at p. 138, quoting Williams, supra, 31 Cal.4that p. 760.)
Unlike in an EDA case, such as Howard, instruction on volitional control is not required in an MDSO case for the reasons stated in Williams and Putnam. The MDSO scheme is more analogous to the SVPA than the EDA in terms of the statutory language inherently encompassing the requirement that the defendant lacks volitional control. The MDSO statute, section 6316.2, and the related jury instruction, contain language stating that the jury must find defendant has a mental disorder causing him to be predisposed to commit sexual crimes, thus indicating he has serious difficulty controlling his criminal sexual behavior.
Howard is also distinguishable because, even if there was error in not instructing the jury on control, such error was harmless in the instant case because there was overwhelming evidence that defendant could not control his criminal sexual behavior and therefore he is not entitled to a new commitment proceeding. (Howard, supra, 35 Cal.4th at p. 122.)
Citing Lemanuel, supra, 41 Cal.4th 33, an EDA case, the People argue a separate jury instruction or finding on volitional control was not required because an instruction tracking the language of section 6316.2 was sufficient. We do not find Lemanuel instructive here since the court did not address the jury instruction challenge raised here concerning control. Rather, the issue in Lemanuel was whether due process required a separate finding of a “serious and well-founded risk of reoffense.” (Lemanuel, supra, at p. 46.) There was no jury instruction challenge because the defendant waived a jury trial.
Furthermore, the court in Lemanuel noted that, although section 1800 in effect at the time did not expressly require a finding of lack of control, the trial court made an explicit finding that the defendant had serious difficulty controlling his dangerous behavior. (Lemanuel, supra, 41 Cal.4that p. 38.) Lemanuel thus is not instructive in this case since the court in Lemanuel did not address the issue raised here concerning the failure to instruct the jury on the lack of volitional control.
(c) Harmless Error
Even assuming the trial court erred in not giving a separate instruction on volitional control, it was harmless error. Given the instructions in the instant case and the evidence presented at both of defendant’s recommitment trials, no rational jury could have failed to find defendant harbored a mental disorder that made it seriously difficult for him to control his criminal sexual impulses. During both trials, there was overwhelming evidence establishing that defendant’s pedophilia, in conjunction with his personality disorders, made it seriously difficult for him to control his criminal sexual impulses.
Because there was overwhelming evidence supporting a finding that defendant’s pedophilia and other mental disorders made it seriously difficult for him to control his criminal sexual impulses, we conclude that, even if a control instruction was required, the absence of such an instruction was harmless beyond a reasonable doubt. (Williams, supra, 31 Cal.4th at pp. 760, 778; People v. Hurtado (2002) 28 Cal.4th 1179, 1194; Putnam, supra, 115 Cal.App.4th 575.) We likewise reject defendant’s contention that there was insufficient evidence at both trials that defendant had serious difficulty controlling his sexual behavior because of his mental disorders.
3. Expert Opinion Testimony
Defendant contends the trial court erred in allowing Dr. Peterson to testify during the second trial that, based on statistical studies, defendant was likely to reoffend. Defendant complains that since the authors of the statistical studies were not present, defendant was unable to cross-examine them concerning the reliability of the statistical studies.
“Psychiatrists, like other expert witnesses, are entitled to rely upon reliable hearsay, including the statements of the patient and other treating professionals, in forming their opinion concerning a patient’s mental state.” (People v. Campos (1995) 32 Cal.App.4th 304, 307-308 (Campos), citing Evid. Code, § 801, subd. (b); People v. Young (1987) 189 Cal.App.3d 891, 913; Conservatorship of Torres (1986) 180 Cal.App.3d 1159, 1163; Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1524-1525; People v. Miller (1994) 25 Cal.App.4th 913, 917-919.) Furthermore, “[o]n direct examination, the expert witness may state the reasons for his or her opinion, and testify that reports prepared by other experts were a basis for that opinion.” (Campos, supra, at p. 308; People v. Coleman (1985) 38 Cal.3d 69, 92.)
An expert witness, however, may not on direct examination reveal the content of reports prepared or opinions expressed by nontestifying experts. (Campos, supra, 32 Cal.App.4th at p. 308.) “‘“The reason for this is obvious. The opportunity of cross-examining the other doctors as to the basis for their opinion, etc., is denied the party as to whom the testimony is adverse.”’” (Whitfield v. Roth (1974) 10 Cal.3d 874, 894, quoting Lynch Meats of Oakland, Inc. v. City of Oakland (1961) 196 Cal.App.2d 104, 112; see also People v. Reyes (1974) 12 Cal.3d 486, 503.) Thus, it generally is not appropriate for the testifying expert to recount the details of the other psychiatrist’s report or expression of opinion. (Campos, supra, at p. 308; People v. Coleman, supra, at p. 92; Whitfield v. Roth, supra, at pp. 894-895.)
During the second trial in October 2006, Dr. Peterson, defendant’s treating psychiatrist, testified that he believed defendant represented a substantial danger of reoffending based on his clinical impression of defendant and on defendant’s refusal to receive treatment for sexual offenders. Dr. Peterson added that his opinion was also based on statistical analyses of risks of reoffending. Defense counsel objected on the grounds Patton forensic students did the actuarial risk assessments and the student who wrote the reports was not available for cross-examination. The prosecutor noted that the testing was not done by a forensic student but, rather, by a psychologist working as a fellow at Patton.
The court stated that before the test results would be permitted in evidence, the prosecutor would be required to lay a foundation that Dr. Peterson was familiar with the tests and knew how to interpret the results. The prosecutor told the court he might not state what the results were. The prosecutor then proceeded to ask Dr. Peterson what testing he had requested and his familiarity with the tests. Dr. Peterson stated that five tests of statistical probability of reoffense were performed in March 2006. He did not study the tests, read about them, or take any training as to how the tests were scored, used, or administered. However, he discussed the tests with other members of his treatment team and the forensic consultant, Dr. Karlsson, who performed the testing.
When asked if he relied on the test results, Dr. Peterson stated: “[M]y opinion regarding Mr. Hobbs is a clinical opinion which is based on his behavior on the unit and his consistent refusal to go to treatment that could specifically deal with his mental disorder. [¶] Now, that clinical opinions [sic] stands alone, but it has been supported by these statistical tests.”
When the prosecutor then asked if Dr. Peterson’s clinical opinion was supported by the tests results, defense counsel objected. The trial court sustained the objection on the ground a sufficient foundation had not been laid. Defense counsel moved to strike Dr. Peterson’s comments about any results or support given based on the test results. The court responded that it was not necessary to strike anything, but admonished the jury not to speculate.
Over defense counsel’s objection, the court permitted Dr. Peterson to answer the prosecutor’s inquiry as to whether Dr. Peterson questioned or changed his clinical opinion after reviewing the test results. Dr. Peterson responded, “No.”
We reject defendant’s contention that the trial court committed reversible error by allowing Dr. Peterson to testify that defendant was likely to reoffend based on statistical studies. Dr. Peterson did not testify as to the test results and stated that his opinion was based on his clinical impression of defendant and on defendant’s refusal to receive treatment for sexual offenders, although he acknowledged he had considered the statistical test results and they did support his opinion.
Furthermore, the court sustained defense counsel’s objections to Dr. Peterson stating the test results since the prosecution had not laid a sufficient foundation. As a consequence, Dr. Peterson was not permitted to testify to the test results and the court admonished the jury not to speculate. Dr. Peterson further stated that his review of the test results did not change his opinion that defendant was likely to reoffend.
Since the court precluded Dr. Peterson from testifying as to defendant’s test results and Dr. Peterson testified that he reached his opinion that defendant was likely to reoffend based entirely on other factors, Dr. Peterson’s testimony mentioning he had reviewed and considered defendant’s test results, if improper, was harmless error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
4. Scope of Expert Expertise
Defendant contends Dr. Peterson’s testimony, that defendant presented a substantial danger of reoffending, was beyond the scope of his expertise. We disagree.
Evidence Code section 801 limits expert opinion testimony “to such an opinion as is: [¶] . . . [¶] . . . Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”
The trial court’s decision to allow expert testimony will not be disturbed on appeal absent a showing of a manifest abuse of discretion. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299; People v. Ward (1999) 71 Cal.App.4th 368, 374.) Dr. Peterson’s training, experience, and education established that he had sufficient knowledge to provide expert opinion on the likelihood of defendant reoffending. The degree of his knowledge and reliability of his opinion go to the weight of the evidence as opposed to admissibility of Dr. Peterson’s opinion testimony. (People v. Bolin (1998) 18 Cal.4th 297, 321-322.)
Dr. Peterson had extensive experience in making psychiatric evaluations. He was a licensed staff psychiatrist at Patton. Since 2005, Dr. Peterson had worked regularly with defendant and was the leader of the psychiatric team treating defendant. He met with staff members to discuss defendant’s condition and treatment. Dr. Peterson diagnosed defendant as having pedophilia, polysubstance dependencies, and various personality disorders. Dr. Peterson testified that his opinion, that defendant would likely reoffend, was founded on his own clinical impressions, his personal interaction with defendant, his consultation with other staff members, defendant’s conduct at Patton, and defendant’s refusal to participate in sex offender treatment.
Dr. Peterson was well qualified to provide expert opinion testimony on the likelihood of defendant reoffending. As to the reliability of and weight to be given to Dr. Peterson’s opinion testimony, the jurors could make their own judgment about the qualifications of Dr. Peterson and the value of his opinions. (People v. Ward, supra, 71 Cal.App.4th at p. 375.)
5. Crawford Error
Defendant contends that under Crawford v. Washington (2004) 541 U.S. 36 (Crawford), his Sixth Amendment right of confrontation was violated by Drs. Sewani and Peterson basing their opinions that defendant would likely reoffend on hearsay reports and materials. Defendant claims that under Crawford he was deprived of his right to confront and cross-examine those who made the “testimonial statements” contained in the reports or materials. We disagree. There was no Sixth Amendment right of confrontation under Crawford.
(a) Dr. Sewani’s Testimony
During defendant’s second trial, Dr. Sewani testified that his opinion that defendant was likely to reoffend was based in part on records and reports generated when defendant participated in a conditional release program. Dr. Sewani either wrote the reports himself or oversaw preparation of the reports and records by staff members. The prosecution asked Dr. Sewani if he based his evaluation of defendant on the last conditional release program report in October 2005, as well as on his own knowledge.
Defense counsel objected on the grounds the October report was another person’s report and the author was not available to be cross-examined. Also, the prosecution did not establish the credentials of the person who prepared the report. Defense counsel further objected as follows: “I would object. Improper medical opinion, denial of the right to confrontation under both the state and federal Constitutions, denial of due process and equal protection under both the state and federal Constitutions, inappropriate procedure based upon the MDSO Act in terms of the presentation of any kind of medical opinion and failure to provide a discovery as indicated.”
The trial court overruled the objection and Dr. Sewani testified that his evaluation of defendant, which was in May 2005, was prepared before the October 2005 report. Dr. Sewani acknowledged his opinions were based on his contact with defendant, as well as his review of information provided by others, including records and reports prepared during defendant’s participation in the conditional release program.
Defense counsel again objected. The court overruled the objection but admonished the jury that “this witness and perhaps other expert witnesses will offer testimony about certain events or incidents that they have read about that they did not personally observe. Except for the ones that they personally observed, you may consider for the truth. But the ones that they read about, were told about cannot be considered by you for their truth but only as reasons or bases for the opinions that the witnesses may ultimately offer.”
(b) Dr. Peterson’s Testimony
Dr. Peterson testified during the second trial that, in forming his opinion that defendant was likely to reoffend, he had considered “statistical analyses of risks of reoffending.” Defense counsel objected on the grounds the actuarial risk assessment test results were prepared by someone else who was not available for cross-examination. Defense counsel further objected on the grounds the testimony violated defendant’s right to confrontation, due process, and equal protection under both the state and federal Constitutions.
The trial court stated that, if defense counsel laid a proper foundation, Dr. Peterson could testify concerning the test results. Defense counsel was unsuccessful in laying a sufficient foundation. As a consequence, the court did not permit Dr. Peterson to state the test results or discuss them. However, over defense counsel’s objection, Dr. Peterson was permitted to testify that his opinion was not changed by the test results.
(c) Analysis
Defendant contends the court violated his right to confront witnesses by allowing the experts to testify based on hearsay reports and records. Defendant’s reliance on Crawford is misplaced, and there was no due process violation.
The holding in Crawford is based on the Sixth Amendment right of confrontation. Crawford holds that, under the Sixth Amendment right of confrontation, “testimonial” hearsay is inadmissible unless the declarant is unavailable to testify and the defendant has had an opportunity to confront and cross-examine the declarant. (Crawford, supra, 541 U.S. at p. 68.)
Crawford neither expressly nor impliedly extended the Sixth Amendment right of confrontation to civil proceedings. Courts of this state and the United States Supreme Court have repeatedly rejected the notion that the use of some criminal procedural protections in civil commitment proceedings transforms them into criminal prosecutions. (E.g., Kansas v. Hendricks, supra, 521 U.S. at pp. 364-365; Hubbart, supra, 19 Cal.4th at p. 1174, fn. 33; People v. Beeson (2002) 99 Cal.App.4th 1393, 1410.) Accordingly, we reject defendant’s contention that Crawford applies to civil MDSO proceedings.
Although defendants in civil MDSO proceedings do not have a Sixth Amendment right of confrontation, they do have a due process right of confrontation. The two rights are not coextensive. (People v. Otto (2001) 26 Cal.4th 200, 209, 214 (Otto); People v. Angulo (2005) 129 Cal.App.4th 1349, 1360, 1365, 1368.) Due process under the MDSO law “is not measured by the rights accorded a defendant in criminal proceedings, but by the standard applicable to civil proceedings[.]” (People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 154.)
In civil MDSO proceedings, “‘“[d]ue process requires only that the procedure adopted comport with fundamental principles of fairness and decency. The due process clause of the Fourteenth Amendment does not guarantee to the citizen of a state any particular form or method of procedure.” [Citation.]’ (In re Parker (1998) 60 Cal.App.4th 1453, 1462.) In Otto, our state Supreme Court explained that an SVP’s due process rights depends on several factors, including ‘the government’s interest, . . . the function involved, and the fiscal and administrative burdens that the additional or substitute procedural requirement[s] would entail.’ (Otto, supra, 26 Cal.4th at p. 214.)” (People v. Fulcher (2006) 136 Cal.App.4th 41, 55-56.)
In the instant case, Crawford does not apply nor was there a due process violation of the right to confront witnesses. Defendant had the opportunity to conduct civil discovery and cross-examine the experts. Furthermore, the hearsay statements by the authors of the reports were not testimonial, as required under Crawford, and the experts did not use the statements for the truth of the facts stated but for the purpose of explaining the basis of their opinions.
Under Evidence Code section 801, subdivision (b), “experts may testify as to their opinions on relevant matters and, if questioned, may relate the information and sources on which they relied in forming those opinions. Such sources may include hearsay. (See People v. Gardeley (1996) 14 Cal.4th 605, 618-619 . . .; Evid. Code, § 801, subd. (b) [an expert’s opinion may be based on matter ‘whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates’].)” (People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210.)
As we explained in People v. Thomas, supra, 130 Cal.App.4th 1202, “Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert’s opinion. Crawford itself states that the confrontation clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’ [Citations.]” (Id. at p. 1210.)
We thus concluded in People v. Thomas, supra, that allowing the expert’s hearsay statements did not violate the confrontation clause, as interpreted in Crawford, because the statements were not offered to establish the truth of the matter asserted, but merely as one of the bases for the expert witness’s opinion.
Here, the experts’ testimony concerning defendant’s past conduct did not violate defendant’s right to confront witnesses because the testimony was introduced, not to establish the truth of the contents of the reports and records relied on by Drs. Sewani and Peterson, but for the purpose of explaining the bases of their expert opinions.
(d) Section 6316.2
Defendant argues that, even though in People v. Fulcher (2006) 136 Cal.App.4th 41, 55,an SVP case, the court stated that defendants do not have a Sixth Amendment right of confrontation, under subdivision (e) of section 6316.2, a defendant in an MDSO proceeding is entitled to rights guaranteed in criminal proceedings under the federal and state Constitutions. Subdivision (e) provides: “The patient shall be entitled to the rights guaranteed under the Federal and State Constitutions for criminal proceedings. All proceedings shall be in accordance with applicable constitutional guarantees. . . .”
Even assuming section 6316.2, subdivision (e) incorporates the Sixth Amendment right of confrontation and Crawford into the MDSO civil proceedings, as discussed above, Drs. Sewani’s and Peterson’s testimony that they relied on information from others’ reports and testing did not violate defendant’s right of confrontation. (People v. Thomas, supra, 130 Cal.App.4th at p. 1210.)
6. Disposition
The judgment is affirmed.
We concur: Ramirez, P. J., McKinster, J.