Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C147618
Lambden, J.
Appellant Eugene Snow seeks reversal on multiple grounds of the jury finding that he is a sexually violent predator (SVP), as alleged by the People in a petition filed in June 2004 pursuant to Welfare and Institutions Code section 6600 et seq. We affirm the judgment.
BACKGROUND
In June 2004, when appellant was an inmate at the California Medical Facility in Vacaville, California, the Alameda County District Attorney filed a petition to commit him as an SVP. The petition alleged he had been convicted of qualifying sexually violent offenses against two or more victims, and had a current diagnosable mental disorder that made it likely he would engage in sexually violent criminal conduct of a predatory nature if he were released. A jury trial was subsequently held.
Appellant was born in 1965. The evidence indicates he is mildly retarded, with an I.Q. of between 65 and 69.
Appellant’s 1986 Conviction
At the SVP trial, respondent contended the first predicate offense was appellant’s 1986 conviction for violating Penal Code section 288, subdivision (a), by engaging in lewd and lascivious conduct with his three-year-old nephew, Jose R. Preliminary hearing testimony by Jose’s father (father) in 1985 was read at the SVP trial. According to father, appellant was staying with his family when father walked into appellant’s bedroom and found appellant under a sleeping bag, which was moving up and down. Father pulled the bag away, and found appellant, naked from the waist down, lying on top of a naked Jose, who was on his stomach, and saw that appellant had an erection. Appellant was put on probation and spent two years at a developmental facility.
Appellant’s appellate counsel contends that appellant pled no contest to both this and the 1999 conviction discussed further below. The Attorney General contends appellant admitted at the SVP trial that he pled guilty to these offenses. Both counsel cite to the same testimony by appellant, in which he does not reveal how he pled.
While appellant denied the molestation allegations at the time, a probation officer reported in 1988 that appellant admitted he had molested the boy. At the SVP trial, he denied molesting his nephew or admitting the offense to the probation officer.
Appellant’s 1999 Conviction
Respondent contended the second predicate conviction occurred in 1999. Appellant again was convicted of a violation of Penal Code section 288, subdivision (a), this time for lewd and lascivious conduct with an eight-year-old girl, S.S. A videotaped interview with S.S., taped in May 1999 at the CALICO Center, was played for the jury. In the videotape, S.S. states that she is eight years old, and used to live with appellant, her sister L.S., and her mother. S.S. said appellant sometimes would open the door when the sisters were taking their bath, and turn the lights on and off. He would look at them and say to L.S., “Oooh, you look good.” He also used to come out of the bathroom naked, showing off his penis and saying, “Everybody look at me.” He manipulated his “nuts” and “white stuff” came out.
S.S. said that one night, appellant pushed her back on a bed and pushed her legs apart, causing her pants to tear in the crotch. There already was a hole, but he “split ‘em on purpose.” He then touched her on her panties with his finger. He enlarged the hole in her pants with his pocket knife. He touched her on her clothes, but it hurt. While he was touching her, which he did by moving his finger in a sort of a twirling motion (indicated by S.S. visually with her finger on the videotape) for “just like a minute or two,” he said, “Oooh, I bet this feels good.” He did not touch her skin, but rubbed her panties. Although S.S. did not expressly say appellant rubbed on her vagina, she indicated for the interviewer that appellant touched her panties in the area of her crotch; also, she nodded her head affirmatively at the end of the interview when the interviewer asked, “You said Eugene touched you in your monkey, with his hand, with his fingers.”
Earlier in the videotaped interview, S.S. indicated that she referred to the area of her vagina as her “monkey.”
One of the expert psychologists who testified at trial, Dr. Mary Jane Alumbaugh, whose testimony is discussed further below, also read aloud a portion of S.S.’s testimony at a 1999 preliminary hearing at the prosecutor’s prompting:
“Q. In the preliminary hearing transcript did the young lady say where he touched her?
“A. Yes, she said he touched her around her private.
“Q. He touched her private part? What’s your understanding?
“A. ‘Where?’ ‘Down below around my private.’ ‘Are you talking about the area that’s between your legs?’ ‘Yes’ ‘Do you have a name for that area.’ ‘No.’ ‘Do you just call it your private part?’ ‘Yes.’ ”
Another expert psychologist who testified at trial, Dr. Shoba Sreenivasan, also referred to S.S.’s testimony as reflected in this preliminary hearing transcript, which we describe more fully, post. Dr. Sreenivasan also testified about preliminary hearing testimony by S.S.’s older sister, L.S. Dr. Sreenivasan was asked by appellant’s counsel to review a portion of that testimony, as follows:
“Q. . . . I would like you to look beginning perhaps around line 14 to the bottom of the page on page 51. Does that refresh your recollection about whether the sister [L.S.] actually claimed to be a witness to this touching of the vagina?
“A. Yes.
“Q. And what was the situation?
“A. That they were wrestling and that she described it as him playing with her when he got between her legs, but she did not see him touch her private part.
“Q. So denied being a witness to that aspect of it.
“A. Yes.”
Appellant, despite being convicted in 1999 without contesting the charges, denied at the SVP trial that he molested S.S. or exposed himself to the girls. He said he agreed to a friend’s request that he allow S.S., her sister, and their mother to live with him for a time in 1998, but that he warned the mother beforehand that he was registered as a sex offender. He further testified that he asked the family to leave in January 1999, which displeased them, and that he was not accused of any sexual wrongdoing until May 1999.
Other Incidents
Respondent contended at the SVP trial that appellant had molested other children as well. Appellant acknowledged that he had been put on probation for two to three years when he was seventeen in 1983, after he was accused of molesting a boy he sometimes babysat. Appellant said he did not know whether or not he molested the boy because he was heavily into drugs and alcohol then. He denied, however, that he was attracted to little boys at the time.
In 1988, when appellant was again living with Jose’s family, appellant’s half-sister accused him of molesting her three-year-old daughter, Angela R. Appellant was convicted of attempted molestation of the child, also upon a plea bargain according to appellant, and sent to prison for 18 months. Angela accused appellant of sticking his finger in her “kit-kat”; at the SVP trial, appellant denied touching her.
Appellant also acknowledged that he was convicted of failure to register as a sex offender in 1994, and for welfare fraud in 1997.
Testimony of the Prosecution’s Experts
Dr. Shoba Sreenivasan testified that appellant met the SVP criteria. Dr. Sreenivasan pointed to appellant’s convictions for sexually violent offenses such as those against Jose and S.S. Dr. Sreenivasan diagnosed appellant as having pedophilia, same and opposite sex, nonexclusive type, based on the fact that he had committed sexual acts with children over a period longer than six months, including John M., Jose, Angela, a boy who had reported being molested by appellant during the investigation involving Angela, S.S. and L.S. Dr. Sreenivasan also opined that appellant’s pedophilia affected his volitional and emotional capacity and caused him to have serious difficulty controlling his behavior. Despite being punished for his sexual behaviors, he continued to reoffend because he was impulsive, had poor judgment, and was emotionally immature. Dr. Sreenivasan also testified that, although there were times when appellant controlled himself, pedophilia is a chronic, lifelong disorder that waxes and wanes, and sometimes increases based on opportunity.
Dr. Sreenivasan believed appellant was likely to engage in sexually violent predatory criminal behavior without appropriate treatment and custody. On the Static-99, an actuarial instrument for predicting sexual recidivism, appellant received a score of five, which put him in the moderate high-risk category, corresponding to a 40 percent chance of reoffense within 15 years. Dr. Sreenivasan thought other factors making him likely to reoffend included his long-term pattern of sexual offending, his interest in children, which has been correlated to a higher risk of recidivism than other sexual offenses, and his choice of both male and female victims. Further contributing to appellant’s recidivism risk, in Dr. Sreenivasan’s opinion, was his unstable background, lack of time in the community between offenses, intimacy deficits, poor history of cooperation on probation, attitudes tolerant of sexual assault, failure to see himself as a risk, and failure to participate in treatment.
Dr. Mary Jane Alumbaugh opined that appellant’s offenses against Jose and S.S. qualified as sexually violent because they involved substantial sexual conduct. In Dr. Alumbaugh’s view, appellant at the very least masturbated with Jose, and he touched S.S.’s genital area. Dr. Alumbaugh also diagnosed appellant as having pedophilia, and believed he was likely to reoffend in a sexually violent predatory manner in the future. She gave him a score of five on the Static-99 as well, and also scored him on a different actuarial instrument, the MNSOST-R, which categorized him as a moderate risk with a 31 percent recidivism rate. Other factors that increased appellant’s recidivism risk included a clearly demonstrated sexually deviant preference, a wide range of victims, the early onset of his reoffending, his criminal history, his unstable lifestyle, and his failure to engage in sexual offender treatment. Dr. Alumbaugh also acknowledged there was no evidence that appellant had any psychopathy, which is a kind of special and unique combination of criminal thinking and total lack of conscience, and there was no evidence that appellant had acted out sexually in prison or the state hospital system.
The Attorney General states in his appellate brief that Dr. Alumbaugh opined that appellant’s offenses against Jose and Angela qualified as sexually violent. This is incorrect.
Appellant’s Case
Appellant presented the expert testimony of a psychologist, Dr. Theodore Donaldson. Dr. Donaldson testified that he viewed pedophilia, like all paraphilias, to be a sexual preference, in this case for sexual contact with children rather than adults. He opined that pedophiles were not the same thing as child molesters, as a child molester commits offenses even though he or she is not driven to do so by a sexual preference and, while he or she may be committing a criminal act, does not necessarily have a mental illness.
Dr. Donaldson did not think appellant was a pedophile, and saw no evidence that appellant had any difficulty controlling his behavior. Dr. Donaldson considered appellant to have engaged in crimes of opportunity, not because he had a strong desire to have sex with children. He thought it was meaningless to predict appellant’s likelihood of reoffense because appellant did not suffer from a mental condition affecting his will that would make reoffense likely. He also thought that the Static-99 scale overestimates the likelihood of reoffense, as reoffense rates had declined over the last several years, and the Static-99 tool had never been “normed” for California offenders. Dr. Donaldson questioned whether appellant would have an opportunity to engage in further criminal conduct, since most of his serious victims were children who lived in the same house as he did, and it was unlikely he would ever again live with children in his house.
Appellant presented, among other witnesses, a psychiatric technician at Atascadero State Hospital who first met appellant in juvenile hall. The technician described appellant as a “model patient,” whose room had been “shaken down” at random for pornography without incident, and who had never been rated a behavioral problem.
DISCUSSION
I. The “Substantial Sexual Conduct” Jury Instruction
Appellant argues that reversal is necessary because the court below, as part of its “substantial sexual conduct” instruction, erroneously provided the jury with an overbroad definition of “masturbation” that impermissibly converted the “substantial” sexual conduct requirement into a “slight” sexual conduct requirement. This is not the case.
Both of appellant’s predicate convictions involved violations of Penal Code section 288, subdivision (a), which provides in relevant part:
“Any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.”
Although there have been some minor changes to this provision between 1988 and 2004, it remains in substance the same as when appellant suffered his convictions. (See Historical and Statutory Notes, 48 West’s Ann. Pen. Code (1994 ed.) foll. § 288, p. 445, (2007 supp.) foll. § 288, p. 160.)
Pursuant to former Welfare and Institutions Code sections 6600 and 6600.1, as written at the time of appellant’s SVP trial in April 2006, a “sexually violent offense” includes a conviction for a felony violation of Penal Code section 288 against a child under 14 years of age if the offending act involved “substantial sexual conduct.” (Former Welf. & Inst. Code, § 6600.1., subd. (a).) “Substantial sexual conduct” includes “masturbation of either the victim or the offender.” (Id., subd. (b).)
We refer at all times herein to former Welfare and Institutions Code sections 6600 and 6600.1 as they were written at the time of the SVP trial, and not as they have been subsequently amended.
A. The Definition of “Masturbation”
The court below, as part of its “substantial sexual conduct” jury instruction, provided the following definition of “masturbation”:
“The word ‘masturbation’ . . . means any touching or contact, however slight, of the genitals of either the victim or the offender, with the requisite intent to arouse, appeal to, or gratify the sexual desires of either party. It is not necessary that the bare skin be touched. The touching may be through the clothing of the person whose genitals were touched.”
The trial court’s “masturbation” definition is consistent with that found in People v. Chambless (1999) 74 Cal.App.4th 773 (Chambless). In Chambless, the defendant, who faced SVP proceedings, had been previously convicted of violating Penal Code section 288, subdivision (a), for his conduct with two young girls. (Id. at p. 785.) He argued that the evidence of his conduct with one of the victims, which included acts which the prosecution contended constituted “masturbation” under the SVP Act, was insufficient to establish that he engaged in “substantial sexual conduct.” (Chambless, at pp. 782-783.)
The Chambless court did not find a legal definition for “masturbation” in California’s penal statutes or case law, but noted that its use in case law pertained to prohibited conduct involving the touching of genitals. (Chambless, supra, 74 Cal.App.4th at pp. 784-785.) “Masturbation” had been used “simply in its commonly understood meaning to describe the touching of one’s own or another’s private parts without quantitative requirement for purposes of defining conduct that was lewd or sexually motivated.” (Id. at p. 784.)
The Chambless court found that, while a violation of Penal Code section 288, subdivision (a), did not require a genital touching, “masturbation,” as used in the Act, did not require something more than that. (Chambless, supra, 74 Cal.App.4th at pp. 785-786.) The court reasoned that the Legislature was aware of the general use of the term “masturbation” to describe any act of genital touching; although this called for more than “any touching” prohibited by Penal Code section 288, it did not require the quantification of the amount of genital touching involved. (Chambless, at p. 786.) Accordingly, the court held that “the definition of masturbation under the Act encompasses any touching or contact, however slight, of the genitals of either the victim or the offender, with the requisite intent.” (Chambless, at p. 783.) Along with the SVP Act’s terms and case law, the court relied on dictionary definitions, common sense, and People v. Grim (1992) 9 Cal.App.4th 1240, 1241-1243, which found that “oral copulation” under the SVP Act could constitute “substantial sexual conduct” based on any contact, however slight, between the mouth of one person and the sexual organ of another. (Chambless, supra, at pp. 784-787.)
According to the Chambless court, common sense “suggests that because the extent of genital touching that would excite or gratify one person may be different than the amount of touching required to do so for another, that the Legislature intended the statute to include an objective standard tied to the purpose for which the amended legislation was adopted, i.e., to protect children under the age of 14 ‘from recidivism among nonviolent repeat felony child molesters who currently have diagnosed mental disorders rendering them likely to repeat such conduct if released.’ ” (Chambless, supra, 74 Cal.App.4th at p. 784, fn. 16.)
Chambless’s “masturbation” definition has since been relied on by several appellate courts. (See, e.g., People v. Carlin (2007) 150 Cal.App.4th 322, 333 [relying on the Chambless definition of “masturbation” in finding the prosecution’s evidence of “substantial sexual conduct” to be sufficient, based on such things as the “fondling” of a victim’s penis]; People v. Fulcher (2006) 136 Cal.App.4th 41, 52 and People v. Whitney (2005) 129 Cal.App.4th 1287, 1294 [both quoting the definition approvingly].) It also was relied on for the subsequent holding that “masturbation” does not require the direct touching of genitals, but may be done through clothing. (People v. Whitlock (2003) 113 Cal.App.4th 456, 463.)
Appellant argues that the Chambless definition of “masturbation” is wrong, and not universally accepted. Specifically, in People v. Lopez (2004) 123 Cal.App.4th 1306, one of the three justices on the appellate panel, Justice Walsh, while concurring in the majority opinion finding defendant engaged in “substantial sexual conduct,” questioned the definition. (Id. at pp. 1315-1316.) Justice Walsh, believing that the term presents “a difficult definitional problem,” considered the Chambless definition “a doubtful minimum standard of ‘substantial sexual conduct,’ ” since it would allow such a finding for “simple misdemeanor lewd conduct, the elements of which include ‘the touching of genitals.’ ” (People v. Lopez, at p. 1315.) He suggested, without saying so, that this definition transmuted “substantial” sexual conduct into “slight” conduct. (Id. at p. 1316.) Appellant argues that Justice Walsh’s criticism is justified, if only because “the word ‘masturbation’ is a combination of two Latin words, ‘manus’ [hand] and ‘turbare’ [to disturb or agitate].” (Fn. omitted.)
Appellant further argues that the Chambless definition is not based on any relevant legal authority. Appellant attempts to distinguish People v. Grim, supra, 9 Cal.App.4th 1240, from Chambless, supra, 74 Cal.App.4th at p. 785, essentially arguing that the nature of “oral copulation” is significantly different, and that “[f]ew acts are more intimate than oral-genital contact.” On the other hand, argues appellant, “there [are] any number of innocent, everyday reasons why some part of the body of an adult may come into contact with the genital area of a child, or vice versa,” such as when a child sits in a man’s lap, or has a piggyback ride, or a full-body hug. Appellant, while conceding that People v. Whitlock, supra, 113 Cal.App.4th at page 463, rightly determined masturbation may occur though the genitals are covered with clothing, argues that, when combined with Chambless, supra, Whitlock’s holding turns Chambless’s “ ‘bright line’ ” into “a muddy field of speculation.”
Appellant also argues “that the criminal law on what constitutes serious sexual abuse should not rest on a fact—the intent of the adult—which so often depends on some informed speculation as to what the intent was.” He contends the Chambless definition, as well as analyses in case law cited to support it, including our Supreme Court’s analysis of what constitutes lewd and lascivious conduct under Penal Code section 288, subdivision (a), in People v. Martinez (1995) 11 Cal.4th 434, border on absurd, because of their reliance on the adult’s intent. Thus, appellant argues, an adult who touches a child’s genitals in the course of giving the child a bath given for objectively hygienic purposes, and which was not intended to appeal to the child’s nascent sexual feelings, would be guilty of child abuse if the adult found it sexually arousing to do so; a doctor who finds it necessary to touch the genitals of a child in the course of a medical examination, but does so with a “lustful intent,” would engage in “masturbation” although “the act itself could not possibly have provided any sexual pleasure.” Appellant argues “the subjective intent of the adult cannot possibly change what was objectively done to the child.”
We reject appellant’s invitation to disagree with Chambless, supra, 74 Cal.App.4th at page 785, for several reasons. Appellant’s argument about the “common sense” definition of masturbation is unpersuasive. The majority in People v. Lopez, supra, 123 Cal.App.4th 1306, rejected a similar argument succinctly: “Words such as ‘manipulation’ and ‘excitation’ do not provide the basis for including a quantitative element to the amount of touching that would constitute masturbation. Moreover, since the instruction in this case told the jury that the touching had to be done with the ‘requisite specific intent to arouse, appeal to, or gratify the sexual desires of either party,’ the component of manipulation or excitation was acknowledged.” (Id. at pp. 1313-1314.)
Appellant’s argument that it is inappropriate to rely on an adult’s “lustful intent” when he or she could be engaged in “objectively” non-sexual activities is also unpersuasive. The trial court’s jury instruction here, as in People v. Whitlock, supra, 113 Cal.App.4th 456, required that the touching must be done with the intent to arouse. Touching a child’s genitals with such an intent, whether it be in the course of giving a bath or conducting a medical examination, constitutes “masturbation.” We fail to see how such a circumstance can be “objectively” non-sexual; nor do we think that the appearance of the event as “not overtly sexual” should matter, as it would only reward subterfuge. Indeed, appellant’s argument suggests a definition of “masturbation” that is far more absurd, since it apparently would require some evidence that the child was actually stimulated.
B. Any Error Was Harmless
Accepting the merit of appellant’s position for argument’s sake, any error by the trial court undoubtedly was harmless. Errors in jury instructions such as that claimed here require reversal only if the error was prejudicial under the reasonable probability standard found in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Breverman (1998) 19 Cal.4th 142, 172-178.) Appellant’s conduct with regard to both Jose and S.S. clearly involved substantial sexual misconduct. Regarding Jose, his father found appellant on top of a naked Jose, naked himself from the waist down and with an erect penis. Appellant admitted committing this offense to a parole officer in the past. S.S. indicated appellant touched a hole in her pants between her legs for a minute or two after pushing her down on a bed, and referred to his touch as “feeling good.” Her sister confirmed appellant had gotten between S.S.’s legs. Each of these incidents was overtly sexual, and involved far more than a mere “touching.” Appellant was found guilty of lewd and lascivious conduct based on these allegations, which he did not challenge prior to the convictions.
Neither party states a standard for harmless error in their appellate papers.
Appellant contends the jury could have had doubts about sufficient aspects of this evidence so as to require reversal under his definition of “masturbation.” He claims father’s testimony was “suspect” because, among other things, the father insisted that appellant had penetrated his son, although he did not directly view this penetration, and claims that the father could not possibly have seen an erect penis in light of his testimony that he saw appellant lying face down on his son and, later, pulling up his pants with his back to father. These contentions are not persuasive, and ignore both the heart of the father’s testimony about what he saw and appellant’s own admission to a probation officer that he had in fact molested the child.
Appellant argues there was a discrepancy in S.S.’s videotaped interview and preliminary hearing testimony, in that she indicated he used a knife to open the hole between her pants in the former, but denied this fact in the latter. This argument also is unpersuasive. The only evidence of such a discrepancy that we have found from our own review of the record is contained in appellant counsel’s cross-examination of Dr. Sreenivasan, as follows:
Appellant does not provide any citation in the record to support his argument.
“Q. As part of reviewing records and looking at information in connection with those two events, the ‘86 and the 2000 convictions, did you see evidence of differing accounts at various points from some of the witnesses?
“A. I would say for [S.S.] there were slight differences in details depending on the context of where she was being interviewed.
“Q. Can you remember any significant differences from one point to another in terms of what her story consisted of?
“A. Seemed to me to be pretty consistent. She made reference I think in the child abuse—the interview with the social worker about Mr. Snow having had a pocketknife
“Q. This is the videotape.
“A. Correct, the videotape—having a pocketknife and having her stretch pants cut open. I’m not sure whether she told the police that. I don’t think there was an extensive interview with the police because she got very upset evidently and they cut that short. But when she testified in the preliminary hearing I think that’s when it was—I don’t think she mentioned the knife.
“Q. And she was asked
“A. The pocketknife. I believe she was asked about that.
“Q. So you do recall that that was one difference, the initial videotaped account talked about a pocketknife used to enlarge the opening or the hole in the stretch pants and then it was denied that there was a knife involved when she later testified in court under oath.
“A. Yes. That’s true.”
Thus, while Dr. Sreenivasan acknowledged the pocketknife discrepancy, he characterized the differences between S.S.’s interview and preliminary hearing testimony overall as “slight” and S.S.’s recounting as “pretty consistent.” Such evidence is not a basis for finding prejudice; indeed, it supports S.S.’s veracity more than it undermines it. Furthermore, S.S.’s sister L.S. corroborated that, as Dr. Sreenivasan summarized her preliminary hearing testimony, appellant had “got between [S.S.’s] legs,” although L.S. did not see him touch S.S.’s “private part.”
As appellant acknowledges in his opening brief, the court granted respondent’s motion in limine to allow into evidence “ ‘all relevant documentary evidence regarding appellant’s sexual predicate offenses . . . without limitation,’ ” including that referred to by the expert witnesses in their testimony. Thus, we consider the expert witnesses’ recounting of S.S.’s and L.S.’s preliminary hearing testimony in evaluating the credibility and reliability of S.S.’s videotaped statements.
II. S.S.’s Videotaped Interview
Appellant next argues that the court erred when it admitted into evidence the CALICO Center’s videotaped interview of S.S. in May 1999, both because its admission violated his Sixth Amendment confrontation rights pursuant to Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and his due process rights pursuant to People v. Otto (2001) 26 Cal.4th 200 (Otto).
A. Appellant’s Crawford Argument
Appellant’s Sixth Amendment argument is meritless. As appellant acknowledges, under existing California law he has no Sixth Amendment right to confrontation in an SVP proceeding because of its civil nature. (Otto, supra, 26 Cal.4th at p. 214.) Although appellant argues that the reasoning of Otto is outdated and should be revisited in light of Crawford (as well as Davis v. Washington (2006) 546 U.S. ___ [126 S.Ct. 2266, 165 L.Ed.2d 224; 2006 U.S. Lexis 4886], which reiterated and applied Crawford), he also recognizes that we are bound by its holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We also agree with an appellate court’s recent assessment that “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. [Citations.]” (People v. Fulcher, supra, 136 Cal.App.4th at p. 55.) Accordingly, we reject appellant’s Crawford argument.
The Attorney General contends appellant forfeited this argument by failing to raise the proper objection before the trial court. To the contrary, the record indicates appellant specifically raised Crawford, supra, 541 U.S. 36, in the course of objecting below.
B. Appellant’s Due Process Argument
As appellant correctly asserts, “[b]ecause civil commitment involves a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process protections” (Otto, supra, 26 Cal.4th at p. 209), including due process protections regarding confrontation rights. (Id. at p. 214.) The Otto court explained:
“ ‘Once it is determined that due process applies, the question remains what process is due.’ [Citation.] We have identified four relevant factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail; and (4) the dignitary interest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible government official.” (Otto, supra, 26 Cal.4th at p. 210.)
The Otto court analyzed these four factors to determine whether admission of the hearsay statements in the subject SVP proceeding violated Otto’s due process rights. (Otto, supra, 26 Cal.4th at p. 210.) Its analysis of factors 1, 3, and 4 (Id. at pp. 210, 214-215) apply equally to this case, and favors the admission of S.S.’s videotaped interview.
As for the second factor, the Otto court determined that it did not violate appellant’s due process rights to confrontation by admitting certain hearsay statements contained in a presentence report into evidence at an SVP proceeding, but that such statements “must contain special indicia of reliability to satisfy due process.” (Otto, supra, 26 Cal.4th at p. 210.) In evaluating the reliability of hearsay statements, relevant factors include “the context in which the statements appear,” “any indicia the defendant challenged the accuracy of the hearsay statements at the underlying criminal proceeding,” “the circumstances surrounding the making of the statement, if known, such as spontaneity and consistent repetition, the mental state of the declarant, use of terminology unexpected of a child of a similar age, lack of motive to fabricate, and whether the hearsay statement was corroborated.” (Id. at p. 211.) The Otto court considered “[t]he most critical factor demonstrating the reliability of the victim hearsay statements” that Otto “was convicted of the crimes to which the statements relate.” (Ibid.) “As a result of such a conviction, 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.” (Ibid.)
With these guidelines in mind, we turn to the CALICO Center’s videotaped interview of S.S. to determine if it contains special indicia of reliability. Clearly, it does. The videotape was made in May 1999, a number of months prior to appellant’s conviction for lewd and lascivious conduct toward S.S., which conviction required a finding that he touched her body in some manner. (People v. Martinez, supra, 11 Cal.4th at pp. 451-452.) The only evidence in the record of a touching was S.S.’s account; in the videotaped interview, she describes appellant putting his finger on her panties in the area of her crotch and moving it around (as she indicates by twirling her finger silently in the videotape) for “a minute or two.” This conviction, based on what appellant’s own appellate counsel characterized as a no contest plea, is “the most critical factor demonstrating the reliability” of the videotape, according to Otto, supra, 26 Cal.4th at page 211. There is no evidence that appellant challenged S.S.’s contentions prior to his conviction.
Appellant argues that it was an abuse of discretion to admit the videotaped interview into evidence “because the reliability of evidence not subject to cross-examination is far outweighed by the prejudice to the SVP defendant.” He contends that the interview was conducted by a person whose main role was to allow S.S. to reveal all the details, and therefore had no reason to ask questions that might cast doubt on S.S.’s story. Appellant contends this was “not even subject to whatever level of doubt a trained probation or police officer might have suggested in a report.” Appellant also questions the reliability of S.S.’s statements because of her young age, that her videotaped statements were made “many months” after the incident, and that her mother and sister never complained of molestation.
These contentions are unpersuasive. As the respondent argued to the trial court, the videotape gave the jury the opportunity to evaluate S.S.’s body language and nonverbal communication for themselves. S.S. appears comfortable, thoughtful, and uncoerced, and the interviewer’s tones and manner are similar. S.S. demonstrates that she understands the difference between the truth and a lie upon being questioned about it, readily indicates that no one has told her what to say, and makes an agreement with the interviewer to tell the truth. S.S. also agrees to correct the interviewer if the interviewer says something that did not happen; later, when the interviewer restates S.S.’s recollection as that appellant touched her “in your panties,” S.S. promptly corrects that she had said the appellant touched her “on my panties.” S.S. does not use any terminology that would be unexpected of her for her young age. Thus, although the parties do not direct us to anything in the record which explains the role of the CALICO Center or the background of the interviewer, an omission that is difficult for us to understand, the contents of the videotape itself contain certain compelling indicia of reliability. Therefore, we reject appellant’s argument that S.S.’s age, the timing of her statements, the lack of complaints from her sister or mother about molestation, fatally undermine the factors which weigh heavily in favor of finding her statements to be reliable. Nor do we think the interviewer’s approach casts doubt on S.S.’s statements significantly more so than if a probation or police officer had reported S.S.’s statements instead. (See People v. Angulo (2005) 129 Cal.App.4th 1349, 1367-1369.)
The reliability of S.S.’s videotaped statements is buttressed by other matters. Appellant does not offer any motive for why S.S. would fabricate her story, other than to suggest that the family was angry that he purportedly forced them out of his apartment some months before the allegations arose, a contention that is supported only by his own testimony. Furthermore, as we have already discussed, Dr. Sreenivasan indicated that S.S.’s preliminary hearing testimony was “pretty consistent” with her interview, and that her sister L.S. corroborated that appellant had gotten between S.S.’s legs.
Appellant also argues S.S.’s videotaped interview is not the sort of evidence that Legislature envisioned when it enacted Welfare and Institutions Code section 6600. That provision states in relevant part:
“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.” (Former Welf. & Inst. Code, § 6600, subd. (a)(3); italics added.)
Appellant argues that this provision somehow limits the documentary evidence that should be considered to the “types of documents explicitly authorized,” which he characterizes as those in which cross-examination was possible, or which were written by a responsible court or government official and for which defendant had an opportunity to challenge the facts when the document was produced. He invokes the doctrine of noscitur a sociis, “it is known by its associates,” which is the principle that “ ‘ “ ‘the meaning of a word may be enlarged or restrained by reference to the object of the whole clause in which it is used.’ ” ’ ” (Texas Commerce Bank v. Garamendi (1992) 11 Cal.App.4th 460, 471, fn. 3.) Appellant also invokes the principle of ejusdem generis, which “suggests that where a statute enumerates specific classes of persons or things followed by general words, the general words are to be construed to refer only to other items or classes that are similar to (have a characteristic common to) those which are specifically enumerated.” (Ibid.)
Appellant fails to mention that the principles of construction he invokes are applied as secondary principles of statutory construction. (Texas Commerce Bank v. Garamendi, supra, 11 Cal.App.4th at p. 471.) We first consider “the primary rule of statutory construction that courts must attempt to ascertain the legislative purpose by reading the statute as a whole and in connection with related statutes.” (Id. at p. 470.) “We begin by considering the statute’s words because they are generally the most reliable indicator of legislative intent.” (People v. Trevino (2001) 26 Cal.4th 237, 241.) Here, the Legislature made clear that prior convictions may be proven by “documentary evidence.” The term, stated in the first sentence of the subject paragraph, is unqualified. The Legislature also prefaced its list of examples by stating that documentary evidence “included, but was not limited” to them. This plain language indicates the Legislature did not intend to restrict documentary evidence as appellant suggests. Therefore, we have no need to resort to secondary principles of statutory construction. (Cf. Texas Commerce Bank v. Garamendi, supra, 11 Cal.App.4th at pp. 469-474 [invoking secondary principles to resolve confusion regarding the meaning of the term “annuities” in the subject statute].)
Our conclusion is consistent with that of our Supreme Court in Otto, supra, 26 Cal.4th 200. The court concluded that Welfare and Institutions Code section 6600, subdivision (a)(3), allows the admission of multiple hearsay that does not fall under any exception to the hearsay rule, such as witness statements contained in presentence reports, in part because of the legislative history behind the provision’s reference to “documentary evidence”:
“As originally enacted, the SVPA did not permit the use of documentary evidence. (See Stats. 1995, ch. 763, § 3.) The Legislature modified the act after prosecutors complained that ‘they must bring victims back to court to re-litigate proof of prior convictions.’ [Citation.] . . . [¶] Thus, the Legislature apparently intended to relieve victims of the burden and trauma of testifying about the details of the crimes underlying the prior convictions. Moreover, since the SVP proceeding may occur years after the predicate offense or offenses, the Legislature may have also been responding to a concern that victims and other percipient witnesses would no longer be available. Given these purposes, the only reasonable construction of section 6600(a)(3) is that it allows the use of multiple-level hearsay to prove the details of the sex offenses for which the defendant was convicted. If the amendment to section 6600, subdivision (a) is construed as excluding multiple hearsay, i.e., victim statements, contained in probation and sentencing reports, then victims would be required to testify—an interpretation that would defeat the apparent purposes of the amendment.” (Otto, supra, 26 Cal.4th at p. 208.)
It is contrary to the legislative purposes summarized directly above to exclude S.S.’s interview, as it would require that she be found and brought to the hearing to testify approximately six years after the event, which runs counter to the legislative concerns noted by the Supreme Court. This is unnecessary, as any concerns about the reliability of her hearsay statements are sufficiently dealt with by analyzing the reliability of the interview itself, as we have done, ante.
Appellant also argues that his contentions are supported by a recent appellate case, People v. Carlin, supra, 150 Cal.App.4th 322, which held that respondent’s reliance on certain hearsay statements by the victim contained in a recently prepared investigator’s report violated Carlin’s due process rights because the statements were not sufficiently reliable under the four factor test stated in Otto, supra, 26 Cal.4th 200. (Carlin, at pp. 339-343.) Carlin’s analysis relied heavily on the fact, which appellant acknowledges, that the statements were made almost a decade after the plea and conviction and, therefore, were never potentially subject to cross-examination prior the conviction or a basis for that “most critical factor,” the conviction itself; furthermore the statements themselves were inconsistent with the victim’s statements a decade earlier and were uncorroborated. (Id. at pp. 341-343.) These circumstances are far different than those present in this case. Therefore, Carlin does not help appellant’s cause.
Accordingly, we find appellant’s argument that the trial court erred by admitting S.S.’s videotaped interview into evidence lacks merit.
III. Respondent’s Expert Testimony
Appellant next argues the trial court erred when it permitted respondent’s experts to opine that he had been convicted of sexually violent offenses against two or more persons because this testimony invaded the jury’s province. We conclude it is unnecessary to address the merits of this argument, because any error by the trial court was undoubtedly harmless.
Dr. Sreenivasan was asked, “[w]ith respect to what I call criteria 1, whether the [appellant] has been convicted of sexually violent offenses against two or more persons, did you form an opinion concerning that criteria?” When respondent asked what the opinion was, appellant objected on the ground that this fact was not within the doctor’s expertise and was an ultimate fact for the jury to determine. The court overruled the objection, stating, “The doctor may give her opinion as to whether this fits because she has to give the ultimate opinion, her ultimate opinion.” Dr. Sreenivasan then testified that appellant’s conduct with Jose was “sexual” because [appellant] had an erection, was on top of Jose, both were naked, and appellant was “making some sort of motion on Jose.” Dr. Sreenivasan, based upon a review of the police report, found evidence that there were bruises and scratch marks on Jose’s waist and concluded that there were “injuries” indicating violence. Regarding S.S., Dr. Sreenivasan stated her opinion that there was “substantial sexual conduct” because she understood appellant had touched S.S.’s vaginal area over her panties, possibly engaging in “rubbing,” and made a “circle kind of motion” which was “painful.”
Dr. Alumbaugh testified that appellant’s predicate offenses were “violent,” stating her opinion that, regarding the Jose incident, there was “substantial sexual conduct” because this means “masturbation, touch the genitals, penetration of any kind.” She stated further, “I would say at the very least it was masturbation.” Regarding S.S., Dr. Alumbaugh stated, among other things, that appellant had “either twirled or stroked or something this hole in her pants on her underwear and made some comments about how it felt or something like that. So that was the substance of that crime.” She stated that S.S. had said it “hurt” and that appellant had touched her on her “monkey.” Dr. Alumbaugh also stated that skin to skin contact was not required, and described the contact as “likely a form of some sort of masturbation.”
Appellant, citing various cases, argues this expert testimony should not have been admitted, and was prejudicial, suggesting that the experts made statements about legal matters, expressed opinions about the veracity of a complaining witness, and improperly offered opinions about an ultimate issue of the case. Respondent acknowledges that the admissibility of expert testimony is subject to an abuse of discretion standard of review (People v. Rowland (1992) 4 Cal.4th 238, 266), and that “[t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.” (Evid. Code, § 805.) Respondent points out, however, that notwithstanding Evidence Code section 805 “an ‘expert must not usurp the function of the jury . . . .’ ” (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1183.)
We need not determine whether or not the expert testimony at issue here somehow usurped the province of the jury because any error was undoubtedly harmless. Evidentiary rulings are evaluated under the harmless error standard stated in People v. Watson, supra, 46 Cal.2d 818, 836. (People v. Sanders (1995) 11 Cal.4th 475, 510.) There is no question that appellant had been convicted of violating Penal Code section 288, subdivision (a), regarding both Jose and S.S. Nor is there any dispute that these convictions were because of the conduct recounted by father in the preliminary hearing and S.S. in her taped interview and/or preliminary hearing testimony respectively. This conduct clearly involved “substantial sexual conduct,” as we have already discussed. Appellant, while he denied the conduct in his testimony at the SVP hearing, suffered these convictions without contesting the allegations. Accordingly, no jury could fail to find that appellant had engaged in “substantial sexual conduct” and, therefore, that he had engaged in two sexually violent offenses. Therefore, any purported error was harmless pursuant to People v. Watson, supra, 46 Cal.2d 818.
Once more, neither party states a standard for harmless error.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Richman, J.