Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 210648
McAdams, J.
Defendant Arthur Robledo was first committed to Atascadero State Hospital as a sexually violent predator (SVP) pursuant to the Sexually Violent Predator Act (SVPA) in 2001. (Welf. & Inst. Code, § 6600 et seq.) In January 2005, a jury determined that defendant remained a sexually violent predator. Accordingly, the court recommitted defendant for another two years, and we affirmed the court’s order. In May 2006, a jury again determined that defendant remained a sexually violent predator, and the court recommitted him for two more years, from November 9, 2005 to November 9, 2007. Defendant appeals from this latest order, arguing that (1) the trial court should have instructed the jury to determine whether custody in a secure facility was necessary to ensure that he was not a danger to others; and (2) the introduction of evidence of victims’ statements through police and probation reports violated his confrontation and due process rights. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
We affirmed the court’s recommitment order in defendant’s prior appeal, People v. Robledo, H028429, decided April 7, 2006. Defendant challenged the 2005 order of recommitment on appeal, asserting that the admission of hearsay evidence about his victims’ statements contained in police reports violated his due process right to confrontation under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). We held that Crawford does not apply to SVP trials and, under existing case law, his due process rights were not violated.
SVPA Trial Proceedings
Trial consisted of the testimony given by two expert witnesses called by the prosecution, Dr. Shoba Sreenivasan, Ph. D., and Dr. Kathleen Longwell, Ph. D., both clinical psychologists. Defendant did not testify or offer other evidence.
Dr. Sreenivasan was recognized by the court as an expert “in the area of evaluation of sexually violent predators.” Dr. Sreenivasan evaluated defendant in 2001, 2005 and 2006. Defendant did not participate in the 2005 or 2006 evaluations. Defendant was interviewed for the first evaluation.
Typically, Dr. Sreenivasan reviews probation officer reports, rap sheets, police reports, psychiatric or psychological evaluations that have been conducted and the person’s state prison file. She did so in this case as well. Dr. Sreenivasan reviewed documents relating to defendant’s convictions in 1976 and 1988.
Dr. Sreenivasan diagnosed defendant as suffering from two mental disorders: (1) “pedophilia, attracted to boys,” of the nonexclusive type, and (2) “hebephilia, in essence interested, sexually attracted to young adolescent males who are just emerging into their sexuality.” “Nonexclusive” means that defendant has had sexual contact with adults, although defendant “has been pretty forthright in indicating that his primary sexual interest is in young boys.” He has been trying to change that by getting involved with 18-year-old males. A clinical diagnosis of pedophilia under the revised DSM IV involves three different elements: (1) a pattern of sexual urges, fantasies or behaviors directed at prepubescent children lasting six months or longer; (2) as a result of that pattern of behaviors, the person has experienced either significant personal distress or some kind of legal complication that affects the person’s life; and (3) the person must be at least 16 years old and the children at whom the sexual urges, fantasies and behaviors are directed are at least five years younger than the person.
In arriving at this diagnosis, Dr. Sreenivasan looked at defendant’s psychosexual history. From his interview and records, she learned that defendant had indicated that at the age of 19 he fell in love with an 11-year-old boy and was sexual with this boy for one to four years. Defendant also told Dr. Sreenivasan that when he was in his early 20’s he had molested about 40 boys under the age of 14 and about 30 boys between the ages of 14 and 17.
Dr. Sreenivasan also considered defendant’s pattern of sexual offending with various victims in reaching her diagnosis, and she discussed defendant’s sexual conduct with the victims in her testimony. Dr. Sreenivasan reviewed and considered police reports pertaining to additional sexual offenses which did not result in conviction.
Defendant did not object to this testimony, although he did ask for an instruction on hearsay. Before Dr. Sreenivasan began her recitation of the facts underlying defendant’s convictions, the court instructed the jury as follows: “Ladies and gentlemen, what you are going to hear during the course of the testimony at times is what we call hearsay evidence, and that means it is statements by somebody else that this witness is relaying to you. And unless it is a statement by Mr. Robledo, it is only offered for the basis of her opinion, not for the truth of that statement. [¶] So in other words, if I were to be standing here with a raincoat and umbrella, I am going to go outside, and I explain to you that the reasons I am dressed this way is because I believe it is going to rain, that is based on what my court reporter told me. In other words, that is the reason why I am doing it. It is not for the truth, but it is in fact raining outside. Just the reasons and conclusions I have come to as to how I should dress.”
Dr. Sreenivasan testified that defendant’s first convictions involved three boys, Lyle E., age 17, his brother Dale, age 12, and a friend of theirs, Ricky B., age 14. The offenses occurred in 1976, when defendant was 24 years old. According to the police report, the police received information from various adult bookstores that defendant was hawking a collection of pornographic pictures of juvenile males, and they set up a sting operation to catch defendant. An undercover police officer indicated to defendant that he was interested in purchasing the pictures and they arranged a meeting at an apartment. Defendant arrived at the apartment with Lyle and Dale. They went into the master bedroom and were starting to disrobe when the police entered, snapped about five pictures and arrested defendant. Prior to his arrest, defendant had told the undercover officer that he could arrange an overnight date with one of the boys for $30. He said he had no problem meeting young boys on the county transit system and that he had a “stable” of 15 adolescent boys available for pictures.
After his arrest defendant admitted having sexual contact with Lyle, Dale and possibly Ricky. Defendant said that he had met Lyle on the bus about two years earlier, when Lyle was 15. They had struck up a conversation about sexual matters and a friendship had developed. Defendant described his relationship with Lyle as a “love relationship.” Eventually, defendant moved into the boys’ home, where they lived with their mother. He developed a surrogate father kind of relationship with the boys but also molested them for approximately a year and a half. Ricky was a friend of the boys, and defendant admitted molesting him on one occasion.
The police interviewed the boys. Dale said he had met defendant through his brother Lyle about a year and a half earlier and said defendant had engaged in numerous acts of oral copulation and sodomy with him. Lyle indicated something similar.
Defendant was convicted of several sexual offenses and received a prison sentence of three years to life. The convictions were considered sexually violent because the acts were coercive and involved different victims. Defendant served his sentence and was eventually paroled.
In 1980, when defendant was about 29, he met a nine-year-old boy named Troy at a community pool, offered the boy a job cleaning the pool, took him out for pizza and bought him things. Troy said that on one occasion defendant took him to a side street in his car, pulled his own pants and Troy’s pants down, rubbed his penis against the boy’s buttocks and orally copulated him. Defendant was not convicted of this offense. Defendant was also accused of sodomizing a four- or five-year-old boy in 1982, when defendant was 30 or 31, but those charges were not filed until 1984 and were eventually dismissed.
Defendant admitted to Dr. Sreenivasan that he had a “mentor[ing]-type” or “grooming kind” of relationship with Troy, but he denied sexual contact. He admitted kissing and hugging the four or five year old, and said that it was moving towards sexual activity, but it never got there.
Dr. Sreenivasan described “grooming behavior” as “the kind of precursor behavior to the sexual molestation and we typically see with the pedophiles, who are interested in a certain type of child, and they establish a relationship with that child through friendship or toys or gifts and they view the relationship itself as sort of the vehicle to developing a sexual relationship. [¶] Oftentimes for the individual as was true for Mr. Robledo the emotional part of that can be … both emotionally and sexually arousing and gratifying, and so that, … sets up sort of the circumstance of the sexual molestation.”
He admitted to Dr. Longwell that he had sexual relations with a 4-year-old boy by rubbing his penis against the boy’s buttocks, but then stopped before it went further.
In 1988, when defendant was 37 or 38, he became involved with three boys, Louis B., age 10, his brother Marvin B., age 8, and their friend, 12-year-old Louis S. Defendant met the boys at different times at an arcade and gave them tokens to play games. Defendant befriended them and took them to Chuck E. Cheese, Shakey’s Pizza, and Golfland. The mother of the B. brothers allowed the children to have overnight and weekend visits at defendant’s home for five weeks in May and June 1988. Defendant convinced Louis S.’s grandmother that the other boys were his sons and received her permission to have Louis S. spend the weekend with defendant.
Louis S. was sleeping on the floor when he awoke to find defendant rubbing his penis against Louis’s buttocks. Louis turned away, but later he saw defendant doing the same thing to Marvin. Defendant then tried to molest Louis again. The next day, Louis did not want to stay and was taken home early by defendant. Louis told his grandmother about the molestations.
Louis S. also told the police that when he went to Louis and Marvin B.’s house with defendant, defendant told their mother that he, Louis S., was his son. When Marvin was interviewed by the police, he was “pretty noncommunicative.” He said he liked defendant, that defendant was a friend, and that defendant had given him money.
Defendant was arrested, convicted and received a 10 year sentence for this set of offenses.
In 1994, when defendant was 43 years old, and while he was on parole for the 1988 convictions, he was placed under surveillance by the San Jose Police Department sexual offender team. Police observed him going into a comic book store frequented by teenage boys and later saw him approach a 15-year-old boy and talk with him. About 10 minutes after the boy walked away, the police interviewed the boy. The boy said he had first met defendant about a month earlier; that he felt defendant had been coming on to him sexually and felt uncomfortable; that defendant had given him a dollar in exchange for information about a 13-year-old “street kid” that defendant was interested in. Defendant was convicted of annoying and molesting a minor and was returned to prison. At the time, defendant was living with an 18 year old named David. Defendant said he was interested in David because he was young-looking. This offense occurred after defendant had undergone sex offender treatment at Atascadero in 1991 and 1993, and talked openly about his grooming, mentoring and sexual interest in boys.
Dr. Sreenivasan considered it significant to her diagnosis of pedophilia that defendant’s interest in boys has been ongoing since age 19 and that his comments to Dr. Longwell as recently as 2004 at age 50 indicate that he is still interested in boys, even though he says much of his sexual fantasies towards boys are gone, and that he can control them by going towards young-looking men. In her opinion, pedophilia is a chronic condition that cannot be cured, but which can be managed. “[P]articularly for someone like Mr. Robledo that has pretty entrenched pedophilia that would take a lot of close self observation and self surveillance, strong adherence to relapse prevention plan techniques to keep it from becoming a behavior.”
Dr. Sreenivasan also assessed whether defendant was likely to reoffend. She used actuarial tools designed to rate whether a sexual offender is at high, moderate or low risk to reoffend. Specifically, she used the Static 99 and the Sex Offender Risk Assessment Guide (SORAG). Defendant scored in the high risk range using both tools.
Dr. Sreenivasan also opined that defendant was at high risk of reoffending because he did poorly under parole supervision in the community. She noted that when he was paroled in 1993 he signed a list of things he was not supposed to do, such as be around minor males under the age of 18, yet the police surveillance showed that he did not comply. Dr. Sreenivasan concluded: “[E]ven being supervised in the community does not contain his sexual deviance.”
Dr. Sreenivasan also considered him at high risk for reoffense because he has low motivation for treatment. She noted that when defendant was paroled to an outpatient clinic for weekly sessions in 1992, he said he “wasn’t really interested in sex offender treatment. … He didn’t really want to be thinking about this, and the end result of that was … he reoffended, or … was engaging in very high [risk] behaviors.” In addition, “while [defendant] has been at ASH [Atascadero State Hospital] he has largely not been in treatment. Short period he was in treatment, maybe about five months in ’02, but after that, he has pretty much dropped out.”
Dr. Sreenivasan also considered defendant at high risk for reoffense because “he sees himself as no risk when he paroled out in 1993 and he sees himself as no risk now in 2006 and … articulated … that he views himself as being able to control himself, not through therapy but more his religious beliefs.” However, he had been involved in the church in the 1970’s, wanted to take “some religious counseling with kids” in the 1990’s and had been doing bible study in a men’s shelter in 1993. “So religion has been a positive continuing kind of theme in Mr. Robledo’s life, but has not impacted his sexual reoffending.” Dr. Sreenivasan also looked to see if “there is something in his release environment that has been articulated in a plan.” His plan, however, was to live with his brother, who is also a registered sex offender, and to be reinvolved with the church and work. She believed “he needs something more than that.” Dr. Sreenivasan did not consider defendant’s age – 54 – as lessening his risk of reoffense. She concluded that defendant presented a likely and substantial danger of committing sexually violent predatory criminal offenses; that he should continue in custodial treatment; and that it was not very likely that he would seek and obtain treatment on a voluntary basis if released, given his track record; and that he meets the criteria of a sexually violent predator.
Dr. Longwell was also recognized by the court as an expert “in the area of evaluation of sexually violent predators.” Dr. Longwell evaluated defendant in 2003, 2004, 2005 and 2006. In 2003 and 2005 defendant refused to be interviewed by her. In 2004 and on March 1, 2006, defendant did agree to an interview.
Dr. Longwell was familiar with defendant’s 1976, 1988 and 1994 offenses. She briefly summarized their underlying facts. Reviewing aspects of defendant’s testimony from court proceedings in 2001, in which he compared his relationships with his victims to beneficial mentoring relationships between men and boys ascribed to classical Greeks or Romans, Dr. Longwell found it significant that “this is consistent with the cognitive or thinking distortions that are typically found with entrenched pedophiles. [T]hey rationalize what they do and have a belief system which justifies having sexual relationships with boys.” She also noted that these beliefs persisted after the 1988 offenses in that he subsequently testified that he felt he had not done anything wrong and that “our society misunderstood men who want to engage in sexual activities with boys.”
No objection was made, but the jury was re-instructed, at defense counsel’s request, as follows: “As the witness talks about things that she was told or that she read are hearsay, and those are again, go only to the basis for her opinion, not for the truth of the matter asserted.”
Dr. Longwell diagnosed defendant with a current mental disorder of “pedophilia, sexually attracted to boys, and with a caveat which is nonexclusive types. In other words, he can engage in sexual activities with post prepubescent boys or adult men, especially young men … in addition to … engaging and wishing to engage with prepubescent boys.” In her opinion, the fact that defendant continued to engage in the same behaviors after suffering repeated and lengthy incarcerations demonstrated that he lacked volitional control over his pedophilia. She considers pedophilia a chronic condition. In his sworn testimony in the 2001 SVP proceedings, defendant agreed he was a pedophile and that it was a chronic condition. However, he also testified that when he had pedophilic fantasies, he would replace that fantasy with an age-appropriate person. He also agreed that he had molested up to 150 boys over his lifetime.
Dr. Longwell used the Static 99, the Stable 2000, the Minnesota Sex Offender Screening Test, SORAG, and the Hare Psychopathy Checklist to assess defendant’s risk of committing another sexually violent and predatory offense if released from custody. Based on his scores, she considered it likely that defendant would commit another violent and predatory offense if he were to be released from custody at this time. Defendant scored in the highest risk range on the Static 99 test. The results of the Stable 2000 suggested that the Static 99 score may actually underestimate defendant’s risk of reoffending. One of the factors that elevated his risk was his resistance to treatment. He quit a voluntary sex offender treatment program called “SOTEP” while in prison because he could not earn credits toward early release if he was in the program. He also quit the Sex Offender Commitment Program (SOCP) program at ASH. Defendant also scored in the highest risk group on the Minnesota Sex Offender Screening Test and the SORAG. His score on the SORAG indicated that he was 100 per cent likely to be charged with another sexual offense within seven years of release. In Dr. Longwell’s opinion, if defendant were released in the community without any supervision, defendant’s chances of voluntarily seeking effective treatment for his sexual disorder “are really close to none.”
On re-direct examination, the prosecutor asked Dr. Longwell to read San Jose Police Department report 94-202-1212, dated July 21, 1994, as well as a supplemental report. The contents of the reports, relating to the 1994 offense of which defendant was convicted, were admitted through her answers to the prosecutor’s questions. There was no objection to her testimony.
The Police Reports
At trial, defense counsel timely objected to the police and probation reports proffered as People’s exhibits 2 through 6 as irrelevant and hearsay. These reports were not made part of the record on appeal. Exhibits 2 through 4 were described by the court as relating to “facts underlying the predicate offenses” and were admitted. The court sustained the objections to exhibits 5 and 6, which were described by the court as “relat[ing] to prior offenses for conduct that is not one of the predicate prior offenses.”
APPELLATE CONTENTIONS
In this appeal, defendant argues that the “the evidence presented at trial required a sua sponte instruction on whether or not custody in a secure facility was necessary to ensure that he was not a danger to others.” (See, e.g., Judicial Counsel of Cal. Crim. Jury Instns. (2006) CALCRIM No. 3454, ¶ 4.) Defendant also contends the trial court erred prejudicially and violated his due process right to confront and cross-examine the witnesses against him by (1) admitting the reports included in exhibits 2, 3 and 4; and (2) permitting Drs. Sreenivasan and Longwell to recite facts contained in the reports and to testify about statements made by the victims of the 1976 and 1988 offenses as well as about “other criminal conduct.” He argues that the due process right to confront and cross-examine witnesses in SVPA proceedings is similar, if not the same as, the Sixth Amendment right in criminal cases, and that Crawford, supra, 541 U.S. 36 applies in SVPA cases. He contends that the error in admitting evidence of the victims’ testimonial hearsay statements is not harmless beyond a reasonable doubt. For the reasons discussed below, we reject defendant’s contentions.
CALCRIM No. 3454 provides, in relevant part: “The petition alleges that is a sexually violent predator. [¶] To prove this allegation, the People must prove beyond a reasonable doubt that: [¶] 1 (He/She) has been convicted of committing sexually violent offenses against one or more victims; [¶] 2 (He/She) has a diagnosed mental disorder; [AND] [¶] 3 As a result of that diagnosed mental disorder, (he/she) is a danger to the health and safety of others because it is likely that (he/she) will engage in sexually violent predatory criminal behavior(;/.) [¶] [¶] [AND] 4 It is necessary to keep (him/her) in custody in a secure facility to ensure the health and safety of others.”
DISCUSSION
Instructional Error
Defendant contends the trial court had a sua sponte duty to instruct the jury to decide whether or not custody in a secure facility was necessary to ensure that defendant did not pose a danger to others. Such an instruction is warranted where evidence is presented that defendant is amenable to voluntary treatment. (People v. Grassini (2003) 113 Cal.App.4th 765, 777; People v. Calderon (2004) 124 Cal.App.4th 80, 92-93.) Defendant argues that the following evidence supported such an instruction: (1) he underwent treatment twice, although he dropped out after several years; (2) he was trying to develop relationships with adult males; he realized that having sex with young boys was wrong; (3) he was 54 years old and deeply religious; (4) he was trying to change.
In our view, evidence that defendant was trying to change, trying to develop relationships with adult males, realized having sex with boys is wrong, and was 54 and deeply religious did not give rise to an inference that he was amenable to receiving treatment for the mental disorder of pedophilia on a voluntary basis. In fact, the relevant evidence on that point uniformly demonstrated that he was not. According to the Dr. Sreenivasan, defendant had a low motivation for treatment. She noted that when defendant was paroled to an outpatient clinic for weekly sessions in 1992, he said he “wasn’t really interested in sex offender treatment. … He didn’t really want to be thinking about this, and the end result of that was … he reoffended, or … was engaging in very high [risk] behaviors.” In addition, “while [defendant] has been at ASH he has largely not been in treatment. Short period he was in treatment, maybe about five months in ’02, but after that, he has pretty much dropped out.” In addition, she concluded: “[E]ven being supervised in the community does not contain his sexual deviance.” Dr. Longwell concurred. She noted that defendant quit the SOTEP program in prison. He also quit the SOCP program at Atascadero. In Dr. Longwell’s opinion, if defendant were released in the community without any supervision, defendant’s chances of voluntarily seeking effective treatment for his sexual disorder “are really close to none.” In our view, there was no evidence presented that defendant was amenable to voluntary treatment. Accordingly, no instruction was required on the question whether defendant’s continued custody in a secure facility was necessary for public safety.
Evidentiary Error
Defendant’s evidentiary contention in this appeal is virtually identical to the contention he raised in his last appeal. Our reasons for rejecting his contention remain the same as well.
Waiver
Defendant assigns as error not only the admission of the police and probation reports, but also the testimony of Drs. Sreenivasan and Longwell about the details of the 1976 and 1988 offenses as well as of the uncharged offenses. However, defendant objected only to the reports themselves; he made no objection in the trial court to the experts’ testimony on any ground whatsoever. He also argues that his failure to specify the constitutional ground for his objection to the reports does not prevent him from arguing that their admission violated his due process right to confront and cross-examine victims. Finally, he argues that the failure to object to the experts’ testimony does not prevent him from raising error that affects his substantial rights, especially when, as a practical matter, the failure to object may be raised by petition for writ of habeas corpus.
We agree with defendant that he “may make a very narrow due process argument on appeal [that] the asserted error in admitting the evidence … had the additional legal consequence of violating due process,” despite his failure to specify a constitutional basis for his timely objection to the police and probation reports. (People v. Partida (2005) 37 Cal.4th 428, 435.) However, Partida did not change the rule that “[o]bjections not presented to the trial court cannot be raised for the first time on appeal.” (In re Michael L. (1985) 39 Cal.3d 81, 88.) Here, defendant’s failure to make any objection to the testimony of Drs. Sreenivasan and Longwell waives his challenge to that testimony on appeal.
Crawford and the SVP Trial
Next, defendant argues that admission of the testimonial statements included in the police and probation reports violated due process and Crawford. In People v. Otto (2001) 26 Cal.4th 200 (Otto) the California Supreme Court recognized that “a defendant in an SVP proceeding is entitled to due process protections” including the requirement that “victim hearsay statements … contain special indicia of reliability.” (Otto, supra, 26 Cal.4that pp. 209-210.) The court also recognized that even though “[t]here is no right to confrontation under the state and federal confrontation clause in civil proceedings, … such a right does exist under the due process clause.” (Id. at p. 214.) The California Supreme Court held that section 6600, subdivision (a)(3), which expressly “permits the details of predicate offenses to be proven by documentary evidence” in an SVP commitment proceeding, establishes an additional statutory hearsay exception that “allows the use of multiple-level hearsay to prove the details of the sex offenses for which the defendant was convicted.” (Otto, at pp. 203, 208.) The Supreme Court rejected the argument that admission of victims’ hearsay statements at Otto’s SVP trial violated his due process right to confrontation, concluding “the victims’ hearsay statements possess sufficient indicia of reliability to satisfy due process.” (Id. at p. 211.)
Defendant implicitly argues that Otto’s reliance on indicia of reliability to satisfy the confrontation concerns of the due process clause is no longer good law in light of Crawford. Crawford held that the Sixth Amendment’s confrontation clause bars admission of testimonial out-of-court statements unless the declarant is unavailable and defendants had prior opportunity to cross-examine the declarant, regardless of indicia of reliability. (Crawford, supra, 541 U.S. at pp. 68-69 & 61 [The substantive guarantee of the Confrontation Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination”].) Defendant explicitly argues that “[t]o the extent that section 6600, subdivision (a)(3), as interpreted by our Supreme Court in People v. Otto, supra, 26 Cal.4th 200, conflicts with this principle, it is unconstitutional.” According to defendant, Crawford is the new measure of due process in SVP proceedings as well as criminal trials and requires a trial court in an SVP proceeding to exclude from the evidence any un-cross-examined victims’ statements contained in a police or probation report.
An SVP defendant does not have a Sixth Amendment right to confrontation, but it is precisely “[b]ecause civil commitment involves a significant deprivation of liberty [that] a defendant in an SVP proceeding is entitled to due process protections.” (Otto, supra, 26 Cal.4th at p. 209.) However, contrary to defendant’s assertion, the measure of that protection is not the Sixth Amendment, or Crawford. “[D]ue process under the SVP Act is not measured by the rights accorded a defendant in criminal proceedings, but by the standard applicable to civil proceedings: The extent of due process protection which must be accorded a civil litigant is tested by consideration of four factors: (1) the private interest [which] will be affected by the official action; (2) the risk of an erroneous deprivation … through the procedures used; (3) the probable value, if any, of additional or substitute procedural safeguards, and (4) the … interest in informing individuals . . . of the action and in [allowing] them to present their side of the story.” (People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 154, internal quotation marks omitted; accord, Otto, at p. 210.)
In Otto, our Supreme Court considered whether reliance upon victims’ statements included in presentence reports violated the due process rights of a defendant in an SVP trial and decided it did not. Since our Supreme Court’s holding in Otto was not based upon the U.S. Constitution’s confrontation clause, and since Crawford was not even partially based on the due process clause, we do not perceive how Otto could have been abrogated by Crawford. This court continues to be bound by the Otto decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In addition, as defendant recognizes, at least two published cases have held that Crawford does not apply to SVP proceedings (People v. Angulo (2005) 129 Cal.App.4th 1349 (Angulo); see also People v. Fulcher (2006) 136 Cal.App.4th 41.) Defendant urges us to reject the reasoning of Angulo as “wrongly decided.” We decline to do so.
Angulo held, and we agree, that Crawford’s holding is predicated on the confrontation clause of the Sixth Amendment, which provides: “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him….” (U.S. Const., 6th Amend., italics added.) SVP commitment proceedings are not criminal prosecutions. It is well established they are “special proceedings” of a civil nature. (Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 1173; People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 988.)
As Angulo also recognized, Crawford is not violated when there was an opportunity to cross-examine. Like the SVP defendant in Angulo, defendant here “had the opportunity to confront the victims or the officers … when the matters were being litigated in the [state] courts, by going to trial on the cases. If he elected not to do so, he necessarily waived his right to confrontation.” (Angulo, supra, 129 Cal.App.4th at p. 1368; see also Otto, supra, 26 Cal.4th at p. 214 [“Otto had the opportunity to confront these witnesses at the time the underlying charges were filed, but instead chose to accept a plea bargain”].) Finally, as Angulo noted, because the Civil Discovery Act applies to SVPA proceedings, defendant could have taken depositions of the victims or the police officers and used those depositions in the SVP trial. (Angulo, supra, 129 Cal.App.4th at p. 1368.) He chose to forgo that opportunity as well.
Defendant concedes he may have waived his right of confrontation in prior proceedings, and does not address the availability of depositions, but argues instead that since “he has never cross-examined [his] accusers” the victims’ statements to the police “cannot be introduced … in this case without violating Crawford.” Crawford clearly does not stand for the proposition that all uncross-examined statements to the police are inadmissible, even in a criminal case, when the defendant had an opportunity to cross-examine and waived it. For the reasons stated in Angulo, we hold that Crawford does not bar the introduction of police reports that contain victims’ statements at an SVP trial.
Defendant also complains that the police reports contained evidence of uncharged offenses. Without reviewing the police reports included in the admitted exhibits, which exhibits were not made a part of the appellate record, we cannot verify defendant’s assertion. The record in fact reflects that the trial court excluded the two exhibits which it described as “relat[ing] to prior offenses for conduct that is not one of the predicate prior offenses.” However, assuming arguendo the admitted police and probation reports contained such evidence, in our view, any due process concerns were allayed by defendant’s admissions to the doctors who testified that he had engaged in sexual activity with approximately 120 to 150 boys and had rubbed his penis on the buttocks of a 4 year old. We find no due process violation in the admission of the police and probation reports.
CONCLUSION
The trial court had no sua sponte duty to instruct the jury to decide whether it was necessary to keep defendant in a secure facility to ensure the safety of others. Crawford did not bar the admission of police and probation reports containing victims’ statements in an SVP trial because the Sixth Amendment’s confrontation clause does not apply to SVP trials. Defendant’s failure to object to the experts’ testimony about victim statements derived from police or probation reports waived appellate review of any asserted error in permitting them to testify.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.