Opinion
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.
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.
*1354 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 *1355 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.
*1356 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 *1357 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.
*1358 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)
Arguably, then, an SVPA defendant could obtain a confidential expert evaluation and, based on the expert’s conclusions, keep the evaluation *1359 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)
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,
The California Supreme Court similarly held in
Corenevsky v. Superior Court
(1984)
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)
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: “[Psychiatrists gather facts . . . that they will
share with the judge or jury . .
.”
(Ake, supra,
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
*1361
scientific
proof
by requiring that he bear its cost. [Citation.]”
(Streater, supra,
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,
The
Streater
court further explained that under the test articulated in
Mathews
v.
Eldridge
(1976)
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)
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 *1362 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,
Our own Supreme Court has reached the same conclusions. In
People
v.
Panah
(2005)
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,
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 . . . .”
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.
*1364
Martinez
(2001)
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)
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,
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,
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)
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,
On the other hand, as noted
ante,
the Supreme Court has recognized that “[although the SVPA is a civil proceeding, its procedures have many of the trappings of a criminal proceeding.”
(People v. Hurtado, supra,
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)
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.
*1367 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*
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)
1.-5. *
6. Crawford
Angulo suggests admission of the police reports violated
Crawford, supra,
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 *1368 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)
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,
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)
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.
*1369 For these reasons, we conclude the admission of the police reports did not violate Crawford.
C.-F *
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.