People v. Angulo

Full title: THE PEOPLE, Plaintiff and Respondent, v. FELIX MICHAEL ANGULO, Defendant…

Court: Court of Appeal of California, Fourth District, Division Two

Date published: May 11, 2005

129 Cal.App.4th 1349 (Cal. Ct. App. 2005)

30 Cal. Rptr. 3d 189

Opinion

No. E034875

May 11, 2005 CERTIFIED FOR PARTIAL PUBLICATION^_

_ Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II.A.4., II.B.1.-5., II.C.-F.

Appeal from the Superior Court of Riverside County, No. 310578, Carl E. Davis, Judge.^†

† Retired judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Meagan J. Beale and Kyle Niki Shaffer, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RICHLI, Acting P.J.

Felix Michael Angulo appeals from an order committing him to a secured facility after a jury found him to be a sexually violent predator pursuant to the Sexually Violent Predator Act. (SVPA; Welf. Inst. Code, § 6600 et seq.) We affirm the order.

I FACTUAL AND PROCEDURAL BACKGROUND

A. First Prior Petition — 1998

In April 1998, the District Attorney of Riverside County petitioned for an order pursuant to the SVPA committing Angulo to the State Department of Mental Health (Department) as a sexually violent predator (SVP). The court found probable cause to believe Angulo was an SVP and set the matter for trial.¹ In August 1998, Angulo admitted the allegations of the petition, and the court committed him to the Department for confinement at Atascadero State Hospital (ASH) for two years.

1 See Welfare and Institutions Code section 6602.

B. Second Prior Petition — 2000

In May 2000, the district attorney petitioned for an order extending Angulo's commitment. Angulo again admitted he was an SVP, and the court again ordered him committed to the Department for two years.

C. Current Petition — 2002

In June 2002, the district attorney again petitioned for an order extending Angulo's commitment. The court found probable cause and in August 2003 set the matter for trial.

The trial, before a jury, took place in November 2003. Presentation of evidence took five days. The jury found Angulo to be an SVP within the meaning of Welfare and Institutions Code section 6600. The court ordered that Angulo be recommitted to the Department for two years for appropriate treatment in a secured facility.

D. Trial Testimony

Most of the testimony at trial came from the People's and Angulo's expert psychologists.

1. Dr. Scherrer

Dr. Mark Scherrer, a clinical psychologist working for ASH, testified for the People. Dr. Scherrer first evaluated Angulo in 2000. He evaluated Angulo again in May 2002 in connection with this case. Before making the evaluation, he tried to interview Angulo, but Angulo would not agree, because the interview was not going to be tape-recorded. In July 2003, Dr. Scherrer again tried to interview Angulo, this time with the interview to be tape-recorded. Angulo again refused.

a. Arkansas convictions — 1986

Dr. Scherrer's review of the documents pertaining to Angulo's case showed that in 1986 Angulo had been convicted in Arkansas of sexually molesting a seven-year-old girl and a 10-year-old boy. Angulo had been living with the children's family for some time when he committed the molestations.

The boy in the Arkansas matter said Angulo had several times placed his penis in the boy's rectum. The girl said Angulo would come to her when she was sleeping, take her into his room, and place his penis between her legs. Angulo was convicted of first degree carnal abuse and first degree sexual abuse and received six years in prison. The comparable California offenses would be sodomy and commission of a lewd and lascivious act on a child.

b. Riverside conviction — 1992

Dr. Scherrer's review further showed that in November 1992, Angulo pled guilty in the Riverside Superior Court to committing a lewd and lascivious act on a child in September 1992. The child was the four-year-old daughter of a woman with whom Angulo was living at the time. Angulo received six years in prison. We set forth additional details of the Riverside offense later in this opinion.

c. Other criminal activity

Dr. Scherrer also noted that in May 1990 Angulo was convicted of burglary after he entered the residence of two men, got in bed with one of them, and put his hand on the man's penis. Angulo left the room when the man woke up, but when the man went back to his bedroom, he found Angulo in the bed, naked. Angulo left the residence, but when he was later detained he had in his possession a ring taken from the residence.

Angulo's records also showed a history of illegal drug use. There was an indication he may have been under the influence of drugs at the time of the Arkansas crimes. In addition, Angulo told a counselor his drug use had contributed to the behavior that led to the 1990 burglary conviction.

d. Angulo's mental condition

Dr. Scherrer noted that in June 2000, a psychiatrist at ASH diagnosed Angulo as suffering from nonexclusive pedophilia with attraction to males and females, as well as multiple substance abuse disorders. Pedophilia is a sexual deviancy characterized by intense recurrent fantasies, urges, or behaviors of sexual activity with children, generally 13 years old or younger. Nonexclusive means that the pedophiliac is attracted to adults as well as children. Pedophilia is a chronic lifelong disorder.

Dr. Scherrer concurred in the diagnosis of pedophilia. He also diagnosed Angulo as having a personality disorder characterized by antisocial behavior such as lack of regard for the rights of others, lack of remorse, lying, and manipulation. In addition, Angulo's continued commission of criminal acts after he was incarcerated showed he did not have the ability to control his behavior.

Based on Angulo's prior sex offenses, the character of his victims, his age, and other factors, Dr. Scherrer concluded Angulo had a medium-high risk of sexual offending. He fell into the second highest category on a risk assessment scale. Persons in that category of Angulo's age (44) have been shown to have a 40 percent risk of being convicted for reoffending within 15 years. That figure understates the actual probability of reoffending, because not all reoffenders are caught and convicted.

Dr. Scherrer thought Angulo's risk of reoffending was increased due to certain empirical factors that had been shown to correlate with a high level of reoffending: his personality disorder, his pedophilia, the death of his mother in his infancy, his commission of crimes in addition to the sexual offenses, and the number of his victims. These empirical factors related to past events and would not change over time. In addition, Angulo exhibited certain dynamic factors that increased his risk of reoffending, but that might change: his substance abuse and his failure to pursue any of his treatment programs seriously.

Based on his review, Dr. Scherrer concluded Angulo met the criteria of the SVP law. Dr. Scherrer saw no evidence of significant psychological, emotional, or behavioral change in Angulo that would override his documented history of sexual offenses.

2. Dr. Starr

Dr. Dawn Starr, a psychologist in private practice, also testified for the People. Angulo refused to speak with her, and she, like Dr. Scherrer, based her evaluation of him on his records.

Dr. Starr for the most part concurred in Dr. Scherrer's evaluation. She testified Angulo's Arkansas and Riverside convictions qualified as sexual violent crimes involving substantial sexual conduct. She also testified Angulo suffered from paraphilia, specifically pedophilia, with deviant sexual interests or urges involving children and nonconsenting individuals. Finally, she testified Angulo had committed, and was likely to commit in the future, sexually violent predatory offenses.

3. Dr. Kania

At Angulo's request, the court appointed Dr. Michael Kania, a psychologist, to evaluate Angulo. Dr. Kania reviewed the police reports from the Arkansas cases and the 1992 California case, as well as previous evaluations of Angulo. He testified for the defense and stated Angulo was unlikely to commit predatory sexual offenses in the future, based on his assessment that Angulo's past offenses had not been predatory.

Dr. Kania noted that in the Arkansas cases, Angulo had been living with the victims' family for a long time before he committed the offenses. He had first lived with the family when his girlfriend also lived there, and she had introduced him to the family. There was no indication Angulo had moved into the residence because he wanted to molest the children, as would be the case with a predatory molestation. The molestations occurred after Angulo had broken up with his girlfriend, when he was experiencing emotional turmoil and confusion about his own sexuality.

With respect to the Riverside offense, Dr. Kania noted that again, Angulo had had a relationship with his girlfriend for a number of years, and had lived with her and her child, before he molested the child. Also, there was no indication he had molested any of his girlfriend's older children, even though he had lived with them as well.

In general, Dr. Kania noted that Angulo did not begin committing sexual offenses until he was an adult, which suggested his disorder was not as deeply entrenched as it would have been had he begun earlier. His last sexual offense had been 11 or 12 years earlier, suggesting his sexual drive was now decreased. Neither his sexual fantasies as a teenager nor his adult fantasies had involved children.

Also, Angulo had established extended relationships (i.e., a year or so) with both women and men, indicating his primary sexual attraction was not to children. In addition, there was no indication Angulo had been molested as a child, which is common among people who are sexually attracted to children. According to Angulo, his primary sexual attraction was now to adult males. Angulo seemed to Dr. Kania to be ashamed of his prior sexual offenses. However, he did not want to admit he had a problem. For that reason, he did not have much motivation to receive treatment.

Dr. Kania agreed that the Arkansas offenses were sexually violent, in that there was force involved. There was also force used in the Riverside molestation, and substantial sexual conduct.

Dr. Kania also agreed that Angulo suffered from a diagnosed medical disorder, i.e., nonexclusive pedophilia. In addition, he agreed Angulo was likely to engage in sexually violent criminal behavior as a result of his disorder. Based on Angulo's history, Dr. Kania believed that if his adult sexual relationships ended in a dramatic way, he was likely to turn to children.

4. Other defense witnesses

Angulo also presented testimony of three ASH employees to the effect that, as far as they knew, his behavior in custody there was good for the most part.

II DISCUSSION

A. Denial of Confidential Court-appointed Experts

Before trial, Angulo requested that the court appoint one or more mental health care professionals to assist in his defense. Angulo also moved that any court-appointed psychological evaluations performed at his request be kept confidential from disclosure to the People. The court appointed Dr. Kania to serve as a defense expert but denied Angulo's request for confidentiality.

Angulo contends the court's refusal to order confidential evaluations violated his federal constitutional rights to assistance of counsel, to present a defense, and to a fair trial under the federal Constitution. He also contends he was entitled to confidential evaluations by virtue of the psychotherapist-patient privilege, the lawyer-client privilege, the work product doctrine, and the privilege against self-incrimination.

1. Appointment of experts in SVP cases

Angulo, an indigent, was represented by the public defender throughout this proceeding. The SVPA expressly authorizes the appointment of experts for indigent litigants. Welfare and Institutions Code section 6603, subdivision (a) (Welfare and Institutions Code section 6603(a)) states in relevant part: "In the case of a person who is indigent, the court shall appoint counsel to assist him or her, and, upon the person's request, assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person's behalf."

By granting an SVP the right to appointment of an expert to perform an examination "or" participate in the trial, Welfare and Institutions Code section 6603(a) suggests that an appointed expert may not necessarily testify at trial. Under the Civil Discovery Act (Code Civ. Proc., § 2016 et seq.), opinions of nontestifying experts are not discoverable unless the opposing party shows that fairness requires disclosure. (Code Civ. Proc., § 2018, subd. (b); Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 297 [ 4 Cal.Rptr.3d 883].) The Civil Discovery Act applies to SVPA proceedings. ( Leake v. Superior Court (2001) 87 Cal.App.4th 675, 679 [ 104 Cal.Rptr.2d 767]; People v. Superior Court ( Cheek) (2001) 94 Cal.App.4th 980, 996 [ 114 Cal.Rptr.2d 760].)

Arguably, then, an SVPA defendant could obtain a confidential expert evaluation and, based on the expert's conclusions, keep the evaluation confidential unless the expert testified or disclosure was necessary to insure fairness. The defendant could then decide whether to have the expert testify, call a different expert to testify, or defend the case without an expert witness. That is, in fact, what defense counsel in this case sought to do; she stated: "Upon receipt of the evaluation(s) I will determine whether it is to respondent's tactical advantage to call the evaluator(s) as (a) witness(es) and will use the evaluation(s) in preparation for trial in such fashion as seems most appropriate."

The question here, however, is not whether an alleged SVP could obtain a confidential evaluation from a nontestifying expert, but whether a trial court in an SVPA proceeding is required to give an indigent defendant that same option. Both the United States and California Supreme Courts have rejected the proposition "that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy. . . ." ( Ake v. Oklahoma (1985) 470 U.S. 68, 77 [ 84 L.Ed.2d 53, 105 S.Ct. 1087] ( Ake); accord, People v. Jackson (1980) 28 Cal.3d 264, 287 [ 168 Cal.Rptr. 603, 618 P.2d 149] [rejecting "the unsupported assumption that any advantage which is available to the wealthy defendant must, of constitutional necessity, be extended to an impecunious one"], disapproved on another point in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3 [ 103 Cal.Rptr.2d 23, 15 P.3d 243].) Instead, the states' obligation is to afford indigents "'an adequate opportunity to present their claims fairly within the adversary system'" by providing them with "the 'basic tools of an adequate defense or appeal.'" ( Ake, at p. 77.) We therefore must consider whether, under the circumstances of this case, a confidential expert evaluation is such a basic tool.

2. Constitutional Rights

In arguing that the court's denial of confidential evaluations violated his constitutional rights to assistance of counsel, to present a defense, and to a fair trial, Angulo relies on two decisions of the United States Supreme Court and two decisions of our own Supreme Court. In Ake, supra, 470 U.S. 68, 74, the court held "that when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue if the defendant cannot otherwise afford one." In Little v. Streater (1981) 452 U.S. 1, 10, 16-17 [ 68 L.Ed.2d 627, 101 S.Ct. 2202] ( Streater), the court held that under the due process clause, an indigent putative father in a paternity suit is entitled to a blood test paid for by the state, even though the proceeding is "quasi-criminal" rather than criminal.

The California Supreme Court similarly held in Corenevsky v. Superior Court (1984) 36 Cal.3d 307 [ 204 Cal.Rptr. 165, 682 P.2d 360] that a criminal defendant's right to effective assistance of counsel "also includes the right to reasonably necessary ancillary defense services. [Citations.]" ( Id. at p. 319.) In People v. Feagley (1975) 14 Cal.3d 338 [ 121 Cal.Rptr. 509, 535 P.2d 373] ( Feagley), the court held that a defendant charged with being a mentally disordered sex offender (see former Welf. Inst. Code, § 6300 et seq.) is constitutionally entitled to proof beyond a reasonable doubt and a unanimous verdict. ( Feagley, at pp. 345, 349-352.)

These cases do not support Angulo's contention that an indigent SVP has a constitutional right to a confidential evaluation by an appointed expert. Preliminarily, it should be noted that both Ake and Coronevsky were criminal prosecutions. As we discuss more fully in part II.A.3 of this opinion, an SVPA proceeding "is a civil proceeding," though it has "many of the trappings of a criminal proceeding." ( People v. Hurtado (2002) 28 Cal.4th 1179, 1192 [ 124 Cal.Rptr.2d 186, 52 P.3d 116].) Hence, it cannot necessarily be presumed that a constitutional right recognized in the context of a criminal proceeding applies wholesale to an SVPA proceeding.

More fundamentally, none of the decisions Angulo cites said anything to suggest that confidential expert assistance is constitutionally required. Feagley did not involve the right to expert assistance at all; it dealt with jury unanimity and the standard of proof. Corenevsky involved a defendant's request for a jury selection expert and law clerks, individuals who, unlike court-appointed psychologists, do not generate relevant factual evidence. Thus, no issue of discovery, or confidentiality, arose.

Ake and Streater did concern expert assistance that would generate relevant evidence. However, the Supreme Court in each case assumed that the evidence generated would not be confidential, because the expert would testify at trial. The court in Ake made numerous statements to that effect: "[P]sychiatrists gather facts . . . that they will share with the judge or jury . . ." ( Ake, supra, 470 U.S. 68, 80, italics added); "psychiatrists can . . . tell the jury why their observations are relevant" ( ibid., italics added); "psychiatrists can translate a medical diagnosis into language that will assist the trier of fact" ( ibid., italics added); "[t]hrough this process of investigation, interpretation, and testimony, psychiatrists ideally assist lay jurors" ( id. at pp. 80-81, italics added); "the testimony of psychiatrists can be crucial" ( id. at p. 81, italics added); "the psychiatrists for each party enable the jury to make its most accurate determination of the truth on the issue before them" ( ibid, italics added).

The court in Streater similarly stated: "Among the most probative additional evidence the defendant might offer are the results of blood grouping tests, but if he is indigent, the State essentially denies him that reliable scientific proof by requiring that he bear its cost. [Citation.]" ( Streater, supra, 452 U.S. 1, 12, italics added.)

Further, the court in Ake predicated its finding of a right to expert assistance on a criminal defendant's right to "a fair opportunity to present his defense," a right which the court stated was "grounded in significant part on the Fourteenth Amendment's due process guarantee of fundamental fairness. . . ." ( Ake, supra, 470 U.S. 68, 76.) The court in Streater, too, based its holding on "the command of the Due Process Clause." ( Streater, supra, 452 U.S. 1, 12.) The court recognized that "[d]ue process, 'unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.' [Citation.] Rather, it is 'flexible and calls for such procedural protections as the particular situation demands.' [Citation.]" ( Id. at p. 5.)

The Streater court further explained that under the test articulated in Mathews v. Eldridge (1976) 424 U.S. 319, 335 [ 47 L.Ed.2d 18, 96 S.Ct. 893, 903], a court in deciding whether due process requires a particular procedure must consider "'three distinct factors: First, the private interest that will be affected by the official action; second, 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; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.'" ( Streater, supra, 452 U.S. 1, 6.) Notably, the court has applied that test in determining the rights that must be afforded a defendant in a civil commitment proceeding. ( Addington v. Texas (1979) 441 U.S. 418, 425 [ 60 L.Ed.2d 323, 99 S.Ct. 1804] [standard of proof for civil commitment]; see also Medina v. California (1992) 505 U.S. 437, 444 [ 120 L.Ed.2d 353, 112 S.Ct. 2572] [noting use of test in civil commitment context].)

Applying that analysis here leads to the conclusion that an indigent SVP's right to a court-appointed psychologist or psychiatrist does not include the right to a confidential evaluation. The first factor, an SVP's liberty interest, is of compelling importance, but it does not weigh in favor of a confidential evaluation. Due process in an SVPA proceeding is satisfied where "the defendant has the opportunity to thoroughly present his side of the story." ( People v. Superior Court ( Howard) (1999) 70 Cal.App.4th 136, 154 [ 82 Cal.Rptr.2d 481].) A psychological evaluation only serves the defendant's right to "present his side of the story" if the results are made available to the jury. In that event, of course, the evaluation is not confidential.

The second factor, the risk of an erroneous deprivation of the defendant's liberty interest, weighs heavily against a right to a confidential evaluation. If anything, an erroneous result is more likely with a confidential evaluation, because the jury will hear less of the available relevant evidence. That consideration carries particular weight in this case. Dr. Kania was the only psychologist to whom Angulo would talk, and defense counsel specifically requested that he be appointed. Thus, the court could reasonably conclude Dr. Kania was likely to gain access to evidence to which the People and the jury would have no access if Angulo's request for confidentiality were granted.

The third factor, the fiscal and administrative burdens that the right claimed by the defendant would entail, also weighs against a confidential evaluation. If Angulo elected to keep the evaluation confidential, the court would either have to require him to proceed without an expert witness — exactly the situation Welfare and Institutions Code section 6603(a) is designed to avoid, and one that might itself raise due process concerns — or appoint at least one, and possibly more, additional experts until Angulo received an evaluation he liked well enough to present to the jury.

The Supreme Court in Ake made clear that there is no right to more than one appointed mental health expert and no right to a favorable evaluation. The court stated that "the obligation of the State is limited to provision of one competent psychiatrist. . . ." ( Ake, supra, 470 U.S. 68, 79, italics added.) It also stated that recognizing a right to an appointed psychiatrist "is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking. . . . [W]e leave to the State the decision on how to implement this right." ( Id. at p. 83.)

Our own Supreme Court has reached the same conclusions. In People v. Panah (2005) 35 Cal.4th 395 [ 25 Cal.Rptr.3d 672, 107 P.3d 790], a capital defendant "refus[ed] to cooperate" with the prosecution and defense psychiatrists appointed by the court, and requested a third mental health expert. The Supreme Court held the request was properly denied: "'Neither Ake [citation] . . . nor the broader rule guaranteeing court-appointed experts necessary for the preparation of a defense [citation], gives rise to a federal constitutional right to the effective assistance of a mental health expert.' [Citation.]" ( Id. at p. 436, italics added, quoting People v. Samayoa (1997) 15 Cal.4th 795, 838 [ 64 Cal.Rptr.2d 400, 938 P.2d 2].) The court in Samayoa similarly held that as long as the defendant receives expert assistance, "[t]he circumstance that these witnesses did not provide testimony at defendant's trial which in defendant's view persuasively supported his defense . . . does not give rise to a claim of a violation of a federal constitutional safeguard. [Citation.]" ( Samayoa, at pp. 838-839.)

Finally, the Ake court recognized that the purpose of requiring court-appointed experts is to "assure a proper functioning of the adversary process. . . ." ( Ake, supra, 470 U.S. 68, 77.) Providing Angulo with confidential evaluations would impair the functioning of the adversary process by giving the defense a distinct advantage over the prosecution. To file an SVPA proceeding, the Department had to obtain at least two expert opinions that Angulo was an SVP. The Department could consult a total of four experts to obtain the required evaluations. (Welf. Inst. Code, § 6601, subds. (d)-(h).)

Nothing in the SVPA permitted the district attorney to keep any of those evaluations confidential. To the contrary, the SVPA provides that an alleged SVP is entitled "to have access to all relevant medical and psychological records and reports." (Welf. Inst. Code, § 6603(a), italics added.) Accordingly, the offender has access to any dissenting report when the Department is obliged to consult more than two experts. Yet if the offender had the right to confidential evaluations as Angulo proposes, the prosecution would have no reciprocal right of access and in cases like this one would be relegated to relying on secondhand evaluations even though a firsthand evaluation existed. Such a result undermines not only the adversary process but also the reliability of the entire proceeding.

For these reasons, we conclude Angulo had no constitutional right to confidential expert evaluations. We now consider Angulo's claim that he had such a right under various evidentiary privileges.

3. Psychotherapist-patient privilege

The psychotherapist-patient privilege is set forth in Evidence Code section 1014.² That section provides in relevant part that a patient "has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist. . . ."

2 Undesignated statutory references are to the Evidence Code.

Section 1017 creates an exception to the psychotherapist-patient privilege, stating: "There is no privilege under this article if the psychotherapist is appointed by order of a court to examine the patient, but this exception does not apply where the psychotherapist is appointed by order of the court upon the request of the lawyer for the defendant in a criminal proceeding in order to provide the lawyer with information needed so that he or she may advise the defendant whether to enter or withdraw a plea based on insanity or to present a defense based on his or her mental or emotional condition." ( Id., subd. (a), italics added.)

We are not aware of any authority directly addressing whether section 1017 allows an alleged SVP to claim the psychotherapist-patient privilege for evaluations performed by court-appointed experts. The People cite People v. Martinez (2001) 88 Cal.App.4th 465 [ 105 Cal.Rptr.2d 841] for the proposition that the privilege does not attach to an expert appointed to evaluate a person alleged to be an SVP. However, there is no indication in Martinez that the expert was appointed "upon the request of the lawyer for the defendant" (§ 1017, subd. (a)), as would have been necessary for the privilege to attach under section 1017. ( Martinez, at p. 484.)

Here, defense counsel requested appointment of an expert. The question, therefore, is whether an SVPA case should be considered a "criminal proceeding" for purposes of the exception to section 1017.

In Kansas v. Hendricks (1997) 521 U.S. 346 [ 138 L.Ed.2d 501, 117 S.Ct. 2072] ( Hendricks), the United States Supreme Court held that a proceeding under the Kansas sexually violent predator act was not a criminal matter for purposes of the constitutional prohibitions on double jeopardy and ex post facto lawmaking. The provisions of the Kansas act in Hendricks were virtually identical to those of California's SVPA. Like the California act, the Kansas act provided for appointment of counsel and experts for indigent parties, a 12-person jury trial, and proof beyond a reasonable doubt. (Kan. Stats. Ann. § 59-29a06(b).)

The Hendricks court nonetheless held that confinement under the act did not constitute punishment. Hence, the act was civil in nature, and confinement based on an offender's past commission of predicate offenses did not violate the double jeopardy and ex post facto protections. ( Hendricks, supra, 521 U.S. 346, 370-371.)

The Hendricks court stated that in determining whether a particular proceeding is civil or criminal, "we ordinarily defer to the legislature's stated intent." ( Hendricks, supra, 521 U.S. 346, 361.) The court determined the intent of the Kansas Legislature was to establish civil proceedings, citing the facts that the legislature placed the act in the probate code, not the criminal code; the legislature described the act as creating a "civil commitment" procedure; the act was not retributive, because it did not "affix culpability for prior criminal conduct" but used the conduct "solely for evidentiary purposes"; no finding of scienter was required to commit an individual found to be an SVP; the act was not intended to function as a deterrent, because persons suffering from mental disorders were "unlikely to be deterred by the threat of confinement"; persons confined under the act were not subject to the restrictions placed on prisoners; the confinement was limited to one year and could only be renewed with a new showing that the individual still met the criteria for confinement; the act permitted immediate release upon a showing that the individual was no longer dangerous; and treatment of the individual confined was "at least an ancillary goal of the Act, which easily satisfies any test for determining that the Act is not punitive." ( Id. at pp. 361-368 fn. 5.)

With the exception that an SVPA commitment is for two years, all of these attributes are shared by the SVPA. In recognition of that fact, the California Supreme Court has repeatedly described the SVPA as civil in nature. The court in Hubbart v. Superior Court (1999) 19 Cal.4th 1138 [ 81 Cal.Rptr.2d 492, 969 P.2d 584] noted that in Hendricks, "[t]he high court found that the Kansas Legislature intended a nonpenal 'civil commitment scheme designed to protect the public from harm.' [Citation.]" ( Hubbart, at p. 1172.) It further stated: "Viewing the legislative record as a whole, we reach a similar conclusion here." ( Ibid.)

The Hubbart court cited the facts that the Legislature disavowed any punitive purpose and declared its intent to establish "'civil commitment' proceedings in order to provide 'treatment'" for SVP's; the Legislature made clear in Welfare and Institutions Code section 6250 that SVP's are to be viewed "not as criminals, but as sick persons"; and "the SVPA was placed in the Welfare and Institutions Code, surrounded on each side by other schemes concerned with the care and treatment of various mentally ill and disabled groups. [Citation.]" ( Hubbart v. Superior Court, supra, 19 Cal.4th 1138, 1171.) The Supreme Court has stated the same conclusion, that the SVPA is civil in nature, in numerous other decisions. ( In re Howard N. (2005) 35 Cal.4th 117, 127 [ 24 Cal.Rptr.3d 866, 106 P.3d 305] ["[i]n 1995, California enacted a civil commitment scheme . . . entitled the Sexually Violent Predators Act"]; Cooley v. Superior Court (2002) 29 Cal.4th 228, 252 [ 127 Cal.Rptr.2d 177, 57 P.3d 654] ["the SVPA is a civil commitment scheme"]; People v. Hurtado, supra, 28 Cal.4th 1179, 1192 ["the SVPA is a civil proceeding"]; People v. Superior Court ( Ghilotti) (2002) 27 Cal.4th 888, 920 [ 119 Cal.Rptr.2d 1, 44 P.3d 949] [the SVPA "consistently emphasizes the themes common to valid civil commitment statutes"]; see also People v. Vasquez (2001) 25 Cal.4th 1225, 1231 [ 108 Cal.Rptr.2d 610, 25 P.3d 1090] [the SVPA "is protective rather than punitive in its intent"].)

On the other hand, as noted ante, the Supreme Court has recognized that "[a]lthough the SVPA is a civil proceeding, its procedures have many of the trappings of a criminal proceeding." ( People v. Hurtado, supra, 28 Cal.4th 1179, 1192.) Accordingly, courts have on occasion applied criminal law rules, or declined to apply civil law rules, in SVPA cases. In Hurtado, the court concluded that federal constitutional error in SVPA cases should be assessed under the standard of prejudice for such error in criminal cases. ( Id. at p. 1194; see Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065].) In Bagration v. Superior Court (2003) 110 Cal.App.4th 1677 [ 3 Cal.Rptr.3d 292], the court held that civil summary judgment procedures are inconsistent with the requirement of proof beyond a reasonable doubt and the right to a unanimous verdict and therefore should not be applied in SVPA proceedings. ( Id. at pp. 1688-1689.)

These decisions, however, do not convince us that an SVPA proceeding should be considered a criminal proceeding for purposes of section 1017. The right at stake in considering whether to apply the "criminal proceeding" exception to that statute is the right of a defendant to prepare and present a defense based upon his or her mental condition. Thus, the exception by its terms applies where a psychotherapist is appointed at the request of the defendant's lawyer "to provide the lawyer with information needed so that he or she may advise the defendant whether to enter or withdraw a plea based on insanity or to present a defense based on his or her mental or emotional condition." (§ 1017, subd. (a).)

Confidentiality is extended to an expert evaluation in that context because if the defense lawyer decides, based on the evaluation, not to proceed with a plea or defense based on mental condition, the defendant's mental condition is no longer in issue in the proceeding. Conversely, if the defendant proceeds with such a plea or defense, he tenders the issue of his mental condition and waives any claim of confidentiality, including the psychotherapist-patient privilege. (§ 1016; People v. Combs (2004) 34 Cal.4th 821, 864 [ 22 Cal.Rptr.3d 61, 101 P.3d 1007]; People v. Montiel (1993) 5 Cal.4th 877, 923 [ 21 Cal.Rptr.2d 705, 855 P.2d 1277].)

In an SVPA case, however, there is no such thing as an insanity "plea" or a mental condition "defense." A defendant's mental condition is always in issue in an SVPA proceeding. Mental illness is not a defense; it is the basis on which the offender may be found dangerous to others and hence subject to civil commitment. The only "defense" available to the offender is simply to show that he is no longer dangerous, notwithstanding his previous convictions for qualifying offenses.

Declining to afford confidentiality to a defense expert's evaluation under section 1017 in an SVPA proceeding does not interfere with the ability of the defendant to show he is no longer dangerous. The People already will have obtained evaluations from two experts concluding the defendant meets the SVP criteria. A defense evaluation concurring in that conclusion is merely cumulative and can be excluded on that basis. (§ 352.) Therefore, the fact it is not confidential does not prejudice the defendant. Conversely, a defense evaluation reaching a different conclusion, as in this case, benefits the offender. Hence, there is no reason for the defense to want to keep that evaluation confidential.

For these reasons, we conclude the rule set forth in section 1017, that the psychotherapist-patient privilege applies to a court-appointed expert in a criminal proceeding, should not apply in an SVPA proceeding. Accordingly, the trial court's denial of confidential experts did not violate the psychotherapist-patient privilege.

4. Other privileges ^_ As noted, Angulo also argues he was entitled to confidential experts based on the lawyer-client privilege, the work product doctrine, and the privilege against self-incrimination. However, he asserts these claims only in passing, without any supporting authority or argument. We therefore are not obliged to, and do not, address them. ( People v. Stanley (1995) 10 Cal.4th 764, 793.)

_ See footnote, ante, page 1349.

B. Use of Hearsay by People's Expert Witnesses

In concluding Angulo qualified as an SVP, Dr. Scherrer and Dr. Starr relied in part on facts recited in police reports of Angulo's prior offenses. Angulo contends the use of the police reports for that purpose (1) was not authorized by any statute or case authority, (2) violated the hearsay rule, (3) deprived Angulo of his right of confrontation and his right to due process; and should be process and, (4) violated Crawford v. Washington (2004) 541 U.S. 36 [ 158 L.Ed.2d 177, 124 S.Ct. 1354] ( Crawford), which was decided after this case was tried.

1.-5.^_ 1. Evidence and ruling a. Arkansas offenses The People's exhibits included police reports pertaining to Angulo's prior offenses in Arkansas. One of the reports stated that the female victim in the Arkansas matter had said Angulo "on more than one occasion, had picked her up while she was sleeping late at night and took her into his bedroom. Once in the bedroom, he would take his clothes off and then take her clothes off. Angulo would then get on top of her and she stated that she could feel his penis between her legs." A supplemental police report from the Arkansas matter recited that the male victim "stated that on more than one occasion [Angulo] used to take [the victim] out of his bed and carry him upstairs to his [Angulo's] room. Once in the room, [Angulo] would take [the victim's] clothes off and put [the victim] on his stomach and in [the victim's] words 'butt screw me.'" Another supplemental report recited that a second male victim had told the police "that on more than one occasion [Angulo] had come into his bedroom late at night and tried to pick him up and take him to his [Angulo's] bedroom. . . . [The victim] did advise that [Angulo] had played with [the victim's] penis on more than one occasion and that [the victim] had seen [Angulo] play with [the first male victim's] penis." Another police report from the Arkansas matter stated that when Angulo moved out of the Arkansas residence and went to California, "three magazines depicting homosexuals displaying themselves and performing homosexual acts" were found in the room Angulo had been occupying. b. Riverside offenses A probation officer's postsentence report from the 1990 Riverside matter, in which Angulo was convicted of burglary for entering the apartment of the two men, described the facts of the offense and listed the source as "Corona Police Officers' Report." The probation officer's postsentence report in the 1992 Riverside matter, in which Angulo was convicted of committing a lewd act with a child in violation of Penal Code section 288, subdivision (a), set forth the circumstances of the offense, as related by the victim's mother: The mother "walked into her living room . . . and observed the defendant with his hand up the victim's dress. The defendant quickly removed his hand and became angry. [The mother] noticed that the defendant had an erection and confronted him, at which time he denied that anything was going on. [The mother] did not question the defendant further because she was afraid of him." The source for this information was listed as a Riverside County Sheriff's Department report. c. Ruling Before and during trial, defense counsel objected to the district attorney's use of the police reports and the probation reports that were based on the police reports, on the grounds of multiple hearsay, lack of foundation and authentication, due process, equal protection, and the right of confrontation. The court overruled the objections and admitted the documents, though it did require the district attorney to make some redactions to them. 2. Waiver The People contend Angulo waived his claims because his own expert, Dr. Kania, also referred to the police reports in his testimony. This contention has no merit, because Dr. Kania testified only after the court had overruled Angulo's objection to the use of the police reports and Dr. Scherrer had testified based on the reports. The People could have used the police reports in cross-examining Dr. Kania regardless of what Angulo did. Angulo therefore did not invite or consent to any error in admitting the reports by allowing Dr. Kania to refer to them. The People's citation of People v. McPeters (1992) 2 Cal.4th 1148 does not support their argument. In McPeters, the defendant tendered his mental condition as an issue in the penalty phase of a capital case. Therefore, the court held he could not prevent the prosecution from showing he refused to be interviewed by a prosecution psychiatrist. ( Id. at p. 1190.) Here, however, a showing that Angulo suffered from a mental disorder sufficient to make him an SVP was part of the People's burden of proof. The People, not Angulo, tendered the issue of his mental condition. The People's citation of People v. Von Villas (1992) 11 Cal.App.4th 175 also is unpersuasive. In that case, defense counsel at first objected to the prosecution's use of a newspaper clipping. However, during cross-examination of a prosecution witness counsel decided the clipping would be useful for impeachment and used it for that purpose. Later, when the court considered the admission of exhibits, defense counsel specifically indicated he had no objection to the exhibit. The court stated: "[Defendant's] tactical decision not to object to the introduction of the clipping as excised constitutes a waiver of the issue on appeal. [Citation.]" ( Id. at p. 237.) The record does not show any comparable tactical decision in this case. 3. Statutory and case authority Welfare and Institutions Code section 6600, subdivision (a)(3) (Welfare and Institutions Code section 6600(a)(3)) 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." We are not aware of any authority directly addressing whether police reports may be used to show the details of a prior conviction under Welfare and Institutions Code section 6600(a)(3). Angulo contends the fact the Legislature in that section specifically included "probation and sentencing reports" shows that its failure to specifically include police reports was deliberate. That is, the Legislature knew that neither probation reports nor police reports are normally included in the record of a prior conviction and intended that probation reports be admissible but not police reports. Angulo's contention is inconsistent with the plain language of Welfare and Institutions Code section 6600(a)(3). The statute provides that documents "including, but not limited to" the documents specifically listed may be used. The phrase "including but not limited to" in a statute "is a phrase of enlargement rather than limitation." ( People v. Gonzalez (2004) 116 Cal.App.4th 1405, 1414.) Further, "[c]ourts should give meaning to every word of a statute if possible, and should avoid a construction making any word surplusage. [Citation.]" ( Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 22.) Angulo's construction of Welfare and Institutions Code section 6600(a)(3) as limited to the documents expressly listed would make the entire phrase "including but not limited to" superfluous. Angulo's contention is also inconsistent with the decision of the California Supreme Court in People v. Otto (2001) 26 Cal.4th 200 ( Otto). In Otto, the trial court denied an alleged SVP's motion to exclude "'police or other hearsay reports' and prevent psychological evaluators from relying on them." ( Id. at p. 204.) The Court of Appeal affirmed, and the Supreme Court affirmed the judgment of the Court of Appeal. ( Id. at pp. 204, 215.) The Supreme Court held that Welfare and Institutions Code section 6600(a)(3)'s express authorization of the use of probation and sentencing reports "implicitly authorizes the admission of hearsay statements in those reports." ( Otto, supra, 26 Cal.4th 200, 207.) The court then noted that California Rules of Court, rule 4.411.5 (rule 4.411.5) "contemplates that police reports will be used as a source of information for summarizing the crime in the presentence report. [Citations.]" ( Otto, at p. 207, italics added.) Rule 4.411.5 sets forth the categories of information that a probation officer's presentence report "shall include." Several of the categories encompass police reports or information they ordinarily contain: "The facts and circumstances of the crime and the defendant's arrest"; "the victim's statement or a summary thereof"; and "written statements from: . . . official sources such as defense and prosecuting attorneys, [and] police (subsequent to any police reports used to summarize the crime). . . ." (Rule 4.411.5(a)(2), (5), (7), italics added.) Thus, Otto concluded: "By permitting the use of presentence reports at the SVP proceeding to show the details of the crime, the Legislature necessarily endorsed the use of multiple-level-hearsay statements that do not otherwise fall within a hearsay exception." ( Otto, supra, 26 Cal.4th 200, 208.) Angulo contends that Otto did not ask, nor did it answer, the question whether police reports are admissible in SVP proceedings to establish proof of predicate prior offenses and other offenses used to show that an offender meets the criteria for an SVP. While the Otto court did not say the words "police reports are admissible," it is difficult to draw any other conclusion from reading the opinion. At the start of the opinion, the Otto court said the question it had to decide was "whether [Welfare and Institutions Code] section 6600(a)(3) allows the admission of multiple hearsay that does not fall within any exception to the hearsay rule. . . ." ( Otto, supra, 26 Cal.4th 200, 204.) The court then answered the question by stating that section 6600(a)(3) "implicitly authorizes the admission of hearsay statements" in presentence reports and that rule 4.411.5 "contemplates that police reports will be used as a source of information for summarizing the crime in the presentence report. [Citations.]" ( Otto, at p. 207, italics added.) Further, the court affirmed a Court of Appeal judgment affirming a trial court's denial of an alleged SVP's motion "to exclude ' police or other hearsay reports' and prevent psychological evaluators from relying on them." ( Id. at p. 204, italics added.) We can see no remaining room for a credible argument that Otto leaves open the question of whether police reports are admissible for their content to prove the circumstances on an alleged SVP's prior offenses. In addition, if the factual summary of the crime in a probation report is based on a probation officer's personal interviews of the victims, police reports based on interviews closer to the time of the offense are likely to be at least as reliable. If, on the other hand, the probation report is simply based on the police reports, it makes no sense to admit one but not the other. Of course, a police report might be subject to redaction to remove irrelevant or unduly prejudicial material pursuant to section 352, but that is equally true of a probation report. At any rate, that is not the issue Angulo has raised. For the reasons stated, we conclude Otto refutes Angulo's claim that the trial court erred in admitting the reports. 4. Hearsay Otto also refutes Angulo's contention that the police reports were inadmissible as hearsay. As noted, in Otto the Supreme Court stated: "By permitting the use of presentence reports at the SVP proceeding to show the details of the crime, the Legislature necessarily endorsed the use of multiple-level-hearsay statements that do not otherwise fall within a hearsay exception." ( Otto, supra, 25 Cal.4th at p. 208, italics added.) Therefore, the court concluded, "the hearsay statements at issue fall within an express statutory exception. . . ." ( Id. at p. 209, italics added.) The hearsay rule only applies "[e]xcept as provided by law" (§ 1200, subd. (b)). Since, according to Otto, Welfare and Institutions Code section 6600(a)(3) created "an express statutory exception" that applies to hearsay statements in police reports, the trial court properly overruled Angulo's hearsay objection. 5. Confrontation and due process a. Right of confrontation in SVPA proceedings "The protections provided by the Sixth Amendment are explicitly confined to 'criminal prosecutions.' [Citation.]" ( Austin v. U.S. (1993) 509 U.S. 602, 608 [ 113 S.Ct. 2801, 2804, 125 L.Ed.2d 488], fn. omitted.) Therefore, unlike a criminal defendant, an alleged SVP does not have a right of confrontation under the Sixth Amendment. Instead, his or her right of confrontation is based on due process: "There is no right to confrontation under the state and federal confrontation clause in civil proceedings, but such a right does exist under the due process clause. [Citation.]" ( Otto, supra, 26 Cal.4th 200, 214.) The distinction is significant. "[D]ue process requirements are more flexible and capable of being tailored to the individual facts than is the confrontation clause whose mandate is close to being absolute. . . ." ( LaChappelle v. Moran (1st Cir. 1983) 699 F.2d 560, 565.) Accordingly, "'[o]nce it is determined that due process applies, the question remains what process is due.' [Citation.]" ( Otto, supra, 26 Cal.4th 200, 210, quoting Morrissey v. Brewer (1972) 408 U.S. 471, 481 [ 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484].) In Otto the Supreme Court identified four relevant factors in applying the due process right of confrontation to SVPA proceedings: (1) the private interest that will be affected; (2) the risk of an erroneous deprivation of the interest; (3) the government's interest; 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. ( Otto, supra, 26 Cal.4th 200, 210.) Applying those factors to the case before it, the Otto court concluded that reliance on victim hearsay statements to prove predicate offenses did not violate the due process right of confrontation. The court acknowledged that Otto's liberty interest was "significant." ( Otto, supra, 26 Cal.4th 200, 210.) It also acknowledged Otto's interests in being informed of the charges and presenting his side of the story before a responsible government official. ( Id. at p. 215.) However, the court noted "the strong government interest in protecting the public from those who are dangerous and mentally ill." ( Id. at p. 214.) Requiring the government to adduce live testimony from victims, or recorded testimony from the prior criminal proceedings, would impede that interest and would, as a practical matter, make it impossible for the government to prove its case where the defendant had pled guilty. ( Id. at pp. 214-215.) The Otto court found these competing interests could appropriately be balanced by requiring that the hearsay statements "contain special indicia of reliability to satisfy due process." ( Otto, supra, 26 Cal.4th 200, 210.) We discuss now the indicia on which the court in Otto relied in finding there was no due process violation in that case and whether those factors are present here. b. Fact of conviction The Otto court first stated that the "most critical factor demonstrating the reliability of the victim hearsay statements" is the fact that the alleged SVP "was convicted of the crimes to which the statements relate. . . . 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." ( Otto, supra, 26 Cal.4th 200, 211.) Angulo asserts the fact he was convicted of the Arkansas and Riverside offenses should not be considered an indication of the reliability of the police reports under Otto, even though he pled guilty to the offenses. He claims it is unknown whether Arkansas required any findings upon entering a guilty plea in 1985 or whether any findings were made. This assertion is inconsistent with the record. The judgment from the Arkansas matter expressly stated that Angulo pled guilty to one count of first degree sexual abuse and one count of first degree carnal abuse and that "[t]he Court determined that Defendant's plea was voluntary and that there is a factual basis for the plea." (Italics added.) Angulo also claims his Riverside conviction for child molestation is unreliable because the minute order of the plea states he pled guilty pursuant to "People vs West." ( People v. West (1970) 3 Cal.3d 595.) Angulo asserts this plea was not a specific admission that the victim's statements were true. However, the minute order further states: " Factual basis taken." (Italics added.) Even if we assume Angulo declined to make any express admission of guilt when he entered his pleas in the Arkansas and Riverside matters, federal and state law both require that if a defendant pleads guilty but protests his innocence, the court cannot accept the plea unless it determines there is a factual basis for it. The United States Supreme Court has stated that "pleas coupled with claims of innocence should not be accepted unless there is a factual basis for the plea [citations] and until the judge taking the plea has inquired into and sought to resolve the conflict between the waiver of trial and the claim of innocence. [Citations.]" ( North Carolina v. Alford (1970) 400 U.S. 25, 38-30, fn. 10 [ 91 S.Ct. 160, 27 L.Ed.2d 162], italics added.) The California Supreme Court similarly has held that "an accused's claim of innocence does not preclude entry of a guilty or nolo contendere plea where the court taking the plea ascertains a 'factual basis' therefor. [Citations.]" ( In re Alvernaz (1992) 2 Cal.4th 924, 940-941, fn. 9.) "In the absence of any indication to the contrary we presume, as we must, that a judicial duty is regularly performed. [Citations.]" ( People v. Visciotti (1992) 2 Cal.4th 1, 49.) Accordingly, "[a]s a general rule, we presume that the trial court has properly followed established law. [Citations.]" ( People v. Diaz (1992) 3 Cal.4th 495, 567.) Here, established law plainly required that the Arkansas and Riverside courts not accept Angulo's guilty pleas unless there was a factual basis for them. We therefore must presume each court found sufficient evidence to satisfy itself that Angulo did, in fact, commit the offenses. The factual record in each case consisted primarily of the police reports and, in the Riverside matter, the probation officer's report, which was prepared from the police reports. That being the case, the fact of the prior convictions — the "most critical factor demonstrating the reliability of the victim hearsay statements" ( Otto, supra, 26 Cal.4th 200, 211) — supports the court's decision to admit the reports. c. Other factors In addition to the fact of conviction, the Otto court identified the following as factors that showed the hearsay statements in that case were reliable: (1) a defendant in a criminal case has a statutory right to review and challenge a probation report ( Otto, supra, 26 Cal.4th 200, 212); (2) trial courts routinely rely on hearsay in probation reports in determining an appropriate sentence in criminal cases, and Rule 4.411.5 contemplates that police reports will be used to prepare probation reports ( Otto, at p. 212); (3) Otto never challenged the accuracy of the victims' statements in the prior case and admitted some of the facts stated by the victims to an examiner ( id. at p. 213); and (4) in the SVPA proceeding, Otto's own expert opined that Otto had been convicted of sexually violent predatory offenses against two or more victims. ( Ibid.) Turning first to factor (1), we note there is no indication whether a probation report was prepared in the Arkansas case or whether Angulo would have had the right to challenge it under Arkansas law. A probation report was prepared in the Riverside matter, but it was a postsentence report, so it is not clear whether Angulo had an opportunity to challenge inaccurate statements in it. It is noteworthy, however, that Angulo had the right to have the report prepared before sentence was imposed. (Pen. Code, § 1203d.) The fact he apparently did not exercise that right suggests he did not claim, or knew he could not show, that the facts on which the court based the sentence were incorrect. Presumably, those facts included the facts set forth in the postsentence report, which came from police reports. Thus, factor (1), at least by inference, supports reliability of the account of the Riverside offense set forth in the probation report. Factor (2) is a general observation about sentencing practices in criminal cases and therefore applies to this case. Police reports are considered trustworthy enough to be relied on not only in probation reports, but also in other contexts. In People v. Norrell (1996) 13 Cal.4th 1, for example, the Supreme Court relied on police reports as one basis for the factual recitation in its opinion. ( Id. at p. 3, fn. 1.) Factor (2) therefore supports reliability. Factor (3) does not weigh for or against reliability. The record does not show either that Angulo challenged or that he admitted the facts of the Arkansas and Riverside cases when he pled guilty. The Arkansas documents state Angulo denied guilt when he was arrested for two of the molestations, but there is no indication whether he continued to do so when he pled guilty. The Riverside documents state Angulo declined to speak to the probation officer who prepared the postsentence report, so there is no indication as to what his position was. Turning to factor (4), we note Dr. Kania concurred in the opinions of the People's experts that Angulo had engaged in sexually violent behavior in the past and was likely to do so in the future. He differed from the other experts only in that he did not think the offenses were predatory. He also agreed with the People's experts that Angulo suffered from nonexclusive pedophilia. Therefore, factor (4) supports reliability. In addition to the reliability of the victims' hearsay statements as measured under factors (1) through (4), the Otto court identified two remaining factors that "diminish the risk of an erroneous deprivation of rights as a result of reliance on the hearsay statements. . . ." ( Otto, supra, 26 Cal.4th 200, 214.) First, in the SVPA proceeding, Otto had the opportunity to put on his own evidence and cross-examine the People's witnesses. ( Id. at p. 214.) Second, the court in the SVPA proceeding had the discretion to exclude unreliable hearsay under section 352. ( Otto, at p. 214.) Both factors apply in this case, and therefore support reliability here. Considering each of the factors identified in Otto, we conclude the court did not violate Angulo's due process right of confrontation by admitting the police reports. The "most critical factor" identified in Otto — the fact of conviction ( Otto, supra, 26 Cal.4th 200, 211) — is fully present here. As noted, all but one of the other factors also support reliability. Dr. Kania's testimony is particularly significant in assessing reliability. He testified that in making his evaluation he relied primarily on the police reports. He explained: "So I rely primarily on the records that are available. And in this case, those were primarily police reports." In three interviews with Dr. Kania, totalling about eight hours, Angulo never admitted any of the prior molestations and generally denied molesting children. Dr. Kania nonetheless concurred with the People's experts that Angulo had committed sexually violent offenses in the past and was likely to do so in the future. The conclusion is therefore inescapable that he considered the police reports more reliable than the statements of Angulo, the party for whom he testified. For these reasons, we conclude the police reports were sufficiently reliable to satisfy due process requirements. The court did not err in rejecting Angulo's claim that the admission of the reports violated his right of confrontation.

_ Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

6. Crawford

Angulo suggests admission of the police reports violated Crawford, supra, 541 U.S. 36. In Crawford, the Supreme Court held that admission of a "testimonial" hearsay statement by a declarant who is not available at trial violates the Sixth Amendment confrontation clause unless the defendant had a prior opportunity to cross-examine the declarant. Crawford also held that a statement obtained by a police officer in the course of an interrogation is testimonial. Finally, Crawford held the admission of such a statement violates the Sixth Amendment even if the statement would be admissible hearsay under the jurisdiction's rules of evidence and even if it bears indicia of reliability. ( Crawford, supra, at pp. 52-54, 59, 68.)

Crawford does not apply here, for two reasons. First, Crawford, a criminal case, was based solely on the Sixth Amendment right of confrontation. The opinion never discussed the due process right of confrontation that is applicable in civil proceedings. At best, Crawford leaves open the question whether testimonial hearsay statements must be excluded even under the less stringent due process confrontation standard.

While we are not aware of any California authority holding that Crawford does not apply to civil commitment proceedings, the Supreme Judicial Court of Massachusetts reached that conclusion in Commonwealth v. Given (2004) 441 Mass. 741 [ 808 N.E.2d 788]. Given was a proceeding to commit the defendant as a sexually dangerous person. The defendant objected to the admission of a police report concerning a prior conviction for child molestation.

The report was expressly made admissible by a Massachusetts statute (Mass. Gen. Laws Ann., ch. 123A, § 14(c)), but the question remained whether its admission violated the federal Constitution. The court concluded it did not, because the report was sufficiently reliable to satisfy due process standards, and the Sixth Amendment did not apply: "The Crawford case has no direct bearing on this case, because, as we have made clear, the confrontation clause does not apply to civil commitment proceedings. [T]he reasoning of the case rests almost exclusively on the historical background of the confrontation clause and the particular concerns motivating its ratification [citation]." ( Commonwealth v. Given, supra, 441 Mass. 741, 747, fn. 9.) We agree with the reasoning and conclusion of the court in Given.

The second reason Angulo's Crawford claim fails is that Crawford is not violated if the defendant had a prior opportunity to cross-examine the declarant. Angulo asserts he was deprived of an opportunity during the SVPA proceeding to cross-examine the victims or the police officers involved in the Arkansas cases, because they were outside California's subpoena power. Angulo overlooks two facts.

First, Angulo had the opportunity to confront the victims and the officers in the Arkansas cases when the matters were being litigated in the Arkansas courts, by going to trial on the charges. If he elected not to do so, he necessarily waived his right of confrontation. ( Boykin v. Alabama (1969) 395 U.S. 238, 243 and fn. 5 [ 23 L.Ed.2d 274, 89 S.Ct. 1709] [for valid guilty plea, due process requires voluntary and intelligent waiver of confrontation right].)

Second, since the Civil Discovery Act applies to SVPA proceedings, Angulo could have exercised his right of confrontation in the present SVPA proceeding by taking the depositions of the Arkansas victims or police officers and using the depositions at the trial of this case. (Code Civ. Proc., §§ 2025, subd. (u)(3)(A), 2026.) The fact the witnesses could not be summoned to appear at trial did not prevent Angulo from confronting and cross-examining them if he so desired.

For these reasons, we conclude the admission of the police reports did not violate Crawford.

C.-F.^fn_ The court refused to give the defense's special jury instructions Nos. 11, 22, and 25. Angulo claims the instructions should have been given. However, he acknowledges that the failure to give the instructions, standing alone, was not reversible even if it was error. As we have found no error in this opinion, we therefore need not address whether the court should have given the special instructions. D. Evidentiary Rulings Angulo challenges two of the trial court's evidentiary rulings. "[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence. [Citations.]" ( People v. Waidla (2000) 22 Cal.4th 690, 717.) Abuse of discretion occurs only when a ruling exceeds the bounds of reason. ( People v. Clair (1992) 2 Cal.4th 629, 655.) 1. Expert testimony Angulo first contends the court improperly permitted Dr. Scherrer to give opinions concerning the application of the law to the facts of the case. The court permitted Dr. Scherrer to testify that the Arkansas and Riverside offenses involved substantial sexual conduct. The court ruled the testimony was admissible to show the basis for Dr. Scherrer's expert opinion, but not for the truth of testimony itself. "A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion. . . ." (§ 802.) The court specifically instructed the jury twice when it admitted Dr. Scherrer's testimony that the testimony was being received only as the basis for his opinion and not "for the accuracy of the legal conclusion. . . ." Jurors must be presumed to have followed instructions limiting the purpose for which evidence is received. ( People v. Danielson (1992) 3 Cal.4th 691, 722, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) In any case, whether a particular act involves substantial sexual conduct is a question of fact. "'Substantial sexual conduct' means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." (Welf. Inst. Code, § 6600.1, subd. (b)). Whether penetration, copulation, or masturbation occurred in a given case is not a question of law, and giving an opinion on the question is not testifying to a legal conclusion. An expert can testify on a question of fact, even if the opinion "embraces the ultimate issue to be decided by the trier of fact." (§ 805.) Therefore, the court did not err in admitting Dr. Scherrer's testimony. Dr. Scherrer also testified that the statute Angulo violated in one of the Arkansas offenses was the Arkansas equivalent of California's Penal Code section 288, subdivision (a). Angulo did not object to the testimony as a legal conclusion and therefore waived his claim of error. (§ 353, subd. (a).) In any event, the court instructed just before Dr. Scherrer gave this testimony that the testimony was being received only to show the basis for his opinion. Dr. Scherrer also testified that the Arkansas offenses involved force and duress and that the Riverside offense involved duress. Angulo did not object to the testimony as a legal conclusion. In addition, the question of duress "is a factual question; the existence of duress always depends upon the circumstances." ( Philippine Export Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1078.) As explained, ante, an expert can testify on a question of fact, even if the opinion embraces an ultimate issue in the case. Admission of Dr. Scherrer's testimony was not an abuse of discretion. 2. Exclusion of evidence regarding ASH treatment program To refute the inference that his failure to participate actively in the ASH treatment program showed he was likely to reoffend, Angulo elicited testimony from Dr. Scherrer that only one person out of 500 had been released from ASH. The court did not permit defense counsel to show through additional testimony that the one person released was released by court order, and the others ready to be released could not get out. The court also did not permit Dr. Scherrer to testify whether one reason ASH patients gave for refusing treatment was that even if they completed treatment they would not be released, or whether patients refused treatment because of the side effects of the medications they were required to take. The court excluded the proffered testimony for lack of relevance and undue consumption of time. Angulo argues the court should have permitted him to present the testimony to show he had a good reason for not attending the treatment program. Evidence is only relevant if it has a "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210, italics added.) Here, the relevant fact was that Angulo would not participate in treatment, not what his reason was. All three experts agreed that Angulo had committed sexually violent offenses in the past. Without treatment, it was a foregone conclusion Angulo would not overcome his disorder and therefore would offend again. No expert testified Angulo's condition would improve enough without treatment that he would be unlikely to reoffend. In any event, Dr. Scherrer could not have known the reason Angulo declined treatment, because Angulo never agreed to speak to him. Angulo points out Dr. Scherrer testified, based on the records he reviewed, that one of the reasons Angulo gave for not participating in the sex offender treatment program was that "nobody got out as a result of those programs. . . ." However, this statement must be interpreted in light of the rest of Dr. Scherrer's testimony concerning Angulo's reasons for declining treatment. Dr. Scherrer testified:

"It's my perception that Mr. Angulo's reasons for refusing treatment vary across time. At one point my recollection is that Mr. Angulo was telling the treatment teams that he didn't want to go into treatment because nobody was even going to get out, but if a patient started, if one of the patients or if the patients started to be released, then he would consider going to Phase II. Well, patients have started to be released and Mr. Angulo continues to refuse to go into active treatment now stating that he wants to pursue his legal options."

In addition, Angulo did not present any evidence that the unlikelihood of being released from ASH was, in fact, the reason he refused treatment. Dr. Kania testified Angulo refused treatment because he was unwilling to acknowledge that he had a sexual disorder. Given these circumstances, exclusion of the proposed testimony was not an abuse of discretion. E. Failure to Instruct Regarding Amenability to Voluntary Treatment Angulo contends the court erred in not instructing the jury to determine whether custody in a secure facility was necessary to insure that Angulo was not a danger to the health and safety of others. He cites People v. Grassini (2003) 113 Cal.App.4th 765 for the proposition that the court must give such an instruction sua sponte where a person presents evidence that he is amenable to voluntary treatment. In Grassini, the court held that evidence that an offender is amenable to voluntary treatment upon release "creates a sua sponte duty in the trial court to instruct the jury that it is to determine whether custody in a secure facility is necessary to ensure that the individual is not a danger to the health and safety of others." ( People v. Grassini, supra, 113 Cal.App.4th 765, 777, fn. omitted.) The court relied principally on three California Supreme Court decisions, People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, Cooley v. Superior Court (2002) 29 Cal.4th 228, and People v. Roberge (2003) 29 Cal.4th 979.) In Ghilotti, the court stated that if an offender "is dangerous without treatment, but safe with treatment," he need not necessarily be treated in custody. ( People v. Superior Court (Ghilotti), supra, 27 Cal.4th 888, 926.) Rather, evaluators can consider "whether the disorder, though dangerous if untreated, is of a kind and extent that can be effectively treated in the community, and whether the disorder leaves the person willing and able to pursue such treatment voluntarily." ( Id. at p. 927.) Where an offender has previously been committed as an SVP, and therefore has been subject to the SVPA's mandated treatment program, "the evaluators may obviously assess his or her progress, if any, as a factor in determining whether he or she represents a substantial danger if unconditionally released at the end of a commitment term." ( Ibid.) Evaluators also may consider whether "there is practicable treatment, readily available in the community, which would eliminate or control the impulses, and the person's current mental condition is such that he or she can be, and is, willing and able to pursue such treatment as long as it is needed." ( Ibid.) In Cooley, the Supreme Court similarly concluded "that a determination of the likelihood of future dangerousness at the probable cause hearing if such evidence has been presented must also take into account the potential SVP's amenability to voluntary treatment upon release." ( Cooley v. Superior Court (2002) 29 Cal.4th 228, 256.) Finally, in Roberge, the Supreme Court said in a footnote: "Evidence of the person's amenability to voluntary treatment, if any is presented, is relevant to the ultimate determination whether the person is likely to engage in sexually violent predatory crimes if released from custody. [Citations.]" ( People v. Roberge, supra, 29 Cal.4th 979, 988, fn. 2.) Assuming, without deciding, that Grassini correctly interpreted these decisions to require a sua sponte instruction on the significance of an offender's amenability to treatment, we conclude the evidence in this case did not warrant such an instruction. After Grassini was decided, the same appellate district held that " Grassini cannot be interpreted to automatically impose on trial courts a sua sponte duty of so instructing." Rather, "such duty is conditioned on the presence of evidence of amenability to voluntary treatment." ( People v. Calderon (2004) 124 Cal.App.4th 80, 92.) Calderon further held that "voluntary" treatment in this context means treatment that is not "conducted in a 'custodial setting which offers mandatory treatment for the disorder.' [Citation.] As opposed to involuntary treatment, voluntary treatment features an environment where the patient is 'free in the community without any conditions, supervision, monitoring, or mandatory treatment in . . . custody.' [Citation.]" ( People v. Calderon, supra, 124 Cal.App.4th 80, 89-90, quoting People v. Superior Court (Ghilotti), supra, 27 Cal.4th 888, 895, 927.) Here, Angulo has pointed to no evidence in the record that suggests "there is practicable treatment, readily available in the community, which would eliminate or control" his disorder, and that his current mental condition is such that he "can be, and is, willing and able to pursue such treatment as long as it is needed." ( People v. Superior Court (Ghilotti), supra, 27 Cal.4th 888, 927.) Instead, he points to evidence that, while at ASH, he voluntarily attended Father Miskella's thinking skills class in 2000 and 2001, participated in Phase I of the sex offender treatment program, and voluntarily completed an AA/NA treatment program. Viewed in the context of the whole record, this evidence did not warrant a sua sponte instruction. First, it was not disputed that the thinking skills class was not a substitute for sex offender therapy. Dr. Scherrer testified: "Father Miskella has communicated clearly that he does not see it as specifically addressing sex offending or replacement for the sex offender commitment program." Dr. Starr testified: "And Father Miskella by his own words said that it is not intended to be a replacement for sex offender treatment." She further testified that the thinking skills program "doesn't include many things that are in the sex offender treatment program. . . ." Moreover, the record demonstrated that Angulo's attendance at the thinking skills program was no indication he was motivated to pursue treatment if he were released. Dr. Scherrer testified Angulo attended Phase I of the sex offender program but did not complete it. He only attended "until a change in hospital policy made it possible for him to have greater freedoms and greater ability to do other activities even if he refused treatment. So the first chance he had to get out without paying a penalty, he did." Furthermore, Dr. Starr explained that Phase I of the program was "simply information. . . . The real treatment begins in Phase II. He has never attended." She also testified that Angulo had "done nothing to address his sex offender specific issues." There similarly was nothing to suggest Angulo's completion of the drug and alcohol program showed he would be amenable to voluntary treatment for his mental disorder if he were released. Dr. Starr testified that Angulo completed the program, but neither she nor either of the other experts said this would make him more amenable to voluntary treatment for his mental disorder upon his release. In fact, Dr. Starr testified pointedly about Angulo's continued sexual misbehavior even while in custody:

"While at Atascadero he has continued to engage in sexual behaviors with other patients . . . to the point where he's been caught receiving oral copulation in another patient's room. . . . I mean, he knows he's going to get caught, this is going to come out at trial, and he persists in doing this."

This evidence is not even remotely comparable to the evidence found to support a sua sponte instruction in People v. Grassini, supra, 113 Cal.App.4th 765. In that case, the offender "requested treatment and received individual and then group therapy" while in prison ( id. at p. 769); "was recognized as a highly contributing and motivated member of his therapy group"; had "made 'significant progress in gaining insight into the factors that led up to his offense'"; and "had gained insight into victim empathy, which is important in preventing future offenses." ( Id. at p. 770.) In addition, Grassini "acknowledged his need for lifelong therapy because he was a pedophile" and presented expert testimony that he had "had successfully recovered as a child molester." ( People v. Grassini, supra, 113 Cal.App.4th 765, 773) He also presented expert testimony that he was not likely to reoffend "because of his efforts to change and improve himself while he was in prison, including taking college courses, being active in treatment and teaching other prisoners" and that "he had been a 'standout participant' in therapy, where he worked to overcome his cognitive distortions and learned to empathize with his victims." ( Id. at p. 774). The Supreme Court in Ghilotti said that "given the compelling protective purposes of the SVPA, the evaluators must weigh the possibility of voluntary treatment with requisite care and caution." ( People v. Superior Court (Ghilotti), supra, 27 Cal.4th 888, 929.) Viewing this record in that light, we conclude Angulo did not present sufficient evidence to require a sua sponte instruction. F. Cumulative Error "The zero effect of errors, even if multiplied, remains zero. [Citation.]" ( People v. Calderon, supra, 124 Cal.App.4th 80, 93.) As we have found no merit in any of Angulo's claims we have addressed, and as Angulo acknowledges the claim we have not addressed would not support reversal even if we found it to be meritorious, his cumulative error claim fails.

III DISPOSITION

The order appealed from is affirmed.

Ward, J., and Gaut, J., concurred.

A petition for a rehearing was denied June 10, 2005, and the opinion was modified to read as printed above. Appellant's petition for review by the Supreme Court was denied August 17, 2005. Werdegar, J., did not participate therein.