P. v. Langhorne

Filed 12/1/05 P. v. Langhorne CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. WILLIAM BRYON LANGHORNE, Defendant and Appellant.

H027495 (Santa Clara County Super. Ct. No. 192118)

William Bryon Langhorne appeals from an order recommitting him as a sexually violent predator (SVP) for two years, beginning November 14, 2003, pursuant to the Sexually Violent Predator's Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.).[1] (Code Civ. Proc., § 904.1.) Appellant was initially ordered committed as a SVP on November 14, 1997.

Appellant Langhorne now challenges the sufficiency of the evidence presented at his jury trial (see § 6603, subd. (a)) and contends that the trial court's refusal to substitute counsel constituted an abuse of discretion, the trial court erred by overruling a hearsay objection to a police report admitted into evidence, and his trial counsel rendered ineffective assistance of counsel by failing to object on hearsay grounds to the expert's reliance upon police reports detailing victims in addition to those who were victims of the criminal offenses of which he was convicted.

Appellant has also filed a petition for writ of habeas corpus, which this court ordered considered with this appeal. By separate order filed this day, we dispose of the petition. (Cal. Rules of Court, rule 24(b)(4).) We now affirm the recommitment order.

A. SVPA Trial Proceedings

Dr. Shoba Sreenivasan, a clinical psychologist whom the court recognized as an expert in mental diagnoses and risk assessment, first evaluated appellant in July 2001 and again in 2003 and in March 2004. Appellant declined to be interviewed each time.

Dr. Sreenivasan reviewed state hospital records and records pertaining to appellant's past offenses, which included police reports, probation reports, and other court records. Dr. Sreenivasan confirmed that she reviewed a police report identified as People's Exhibit 1 and used it in making her diagnosis. Dr. Sreenivasan considered appellant's pattern of sexual offending with various victims in reaching her diagnosis.

As she had in her previous evaluations, Dr. Sreenivasan determined that appellant suffers from pedophilia, same sex. She used the criteria outlined by the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR). The criteria for a diagnosis of pedophilia include a recurrent pattern of fantasies, urges or behaviors that involve a prepubescent child for a period of at least six months. Pedophilia involves some kind of distress, which can be of a legal, social, or personal nature. The offender must be at least 16 years old and five years older than the victim. The DSM-IV indicates that the recidivism rate for individuals with pedophilia involving a preference for males is roughly twice the recidivism rate for individuals with pedophilia involving a preference for females, which was consistent with Dr. Sreenivasan's understanding.

Dr. Sreenivasan discussed appellant's sexual conduct with the victims in her testimony. She first testified regarding victims of appellant's Penal Code section 288a offenses, which included Shawn, Christopher, Timothy, Doug, Ricky, and Richard.

Appellant met Shawn through Boy Scouting. Appellant, then an assistant scout master, sexually molested Shawn, a scout, from the time Shawn was about 12 years old until Shawn was about 14 years old. Shawn initially rejected appellant's sexual overtures but appellant persisted. Dr. Sreenivasan indicated that such persistence was a fairly typical pattern among pedophiles, who as an adult authority figure may try to put the sexual activity "in the context [of] teaching the young boy . . . ." Shawn eventually relented because he did not want to lose appellant's friendship.

Appellant initiated the sexual relationship with Shawn in around 1982 or 1983 when Shawn was at appellant's apartment for the purpose of working on a merit badge. Appellant encouraged Shawn to look at a Penthouse magazine and then asked Shawn whether he could "stroke him off."

Dr. Sreenivasan testified that her diagnosis was strengthened by the number of encounters with Shawn, who had indicated there had been between 10 and 20 incidents. According to Dr. Sreenivasan, appellant's multiple requests that Shawn masturbate and orally copulate him, with which Shawn complied one time, spoke to "the level of entrenched interest [appellant] has involving young boys."

Appellant showed another victim, a 12-year-old boy named Christopher, many pornographic materials. On one occasion, appellant rubbed Christopher's penis "back and forth" while Christopher watched television in appellant's apartment. Appellant told Christopher not to tell anyone, which Dr. Sreenivasan found significant because it showed appellant was aware he was doing something wrong that could get him in trouble.

On May 17, 1986, appellant rubbed Christopher's penis and orally copulated him. Appellant asked Christopher if it felt good. Dr. Sreenivasan indicated that this type of concern with whether the boys were experiencing sexual satisfaction "shows the level of eroticized relationship that he had with these boys."

Another victim, Timothy, had reported that appellant groped his genital area over his pants, beginning in January 1986 and ending in April 1986 when Timothy stopped going to appellant's house. Timothy had indicated that the groping occurred numerous times, sometimes eight or nine times in one day, and, on one occasion, appellant squeezed Timothy's genitals. Pornography was involved in one instance. Dr. Sreenivasan stated that appellant's behavior "speaks to poor impulse control and a kind of almost compulsive element."

The next victim discussed was Doug, a 12-or-13-year-old member of appellant's scout troop. Doug had reported that appellant was always trying to touch his crotch area over his pants but "on most occasions Doug would just bat his hand away." Appellant would pout and get angry if Doug refused to let appellant go further. Appellant fondled Doug's genitals and touched his penis under his pants on four separate occasions. During one incident, appellant forced Doug to the ground. Appellant also showed him pornography. Dr. Sreenivasan indicated that appellant's response of becoming angry and pouting when repulsed was significant because it was similar to appellant's reportedly persistent behavior with other victims.

Ricky and his older brother James visited appellant at his home. Appellant had sex talks with the brothers and showed Ricky pornographic magazines. On one occasion when Ricky was sitting on the couch, appellant asked Ricky, then about 12 and a half, if he could orally copulate Ricky. Although Ricky was reluctant, Ricky complied after appellant told him that James, who was already sexually involved with appellant, said it was okay. Appellant orally copulated Ricky on two more occasions.

Richard, another member of appellant's scout troop, reported numerous sexual contacts with appellant over a four-year period. Richard was orally copulated by appellant while they were on a scout campout. At other times, he was groped and fondled by appellant. Richard variously reported being orally copulated by appellant numerous times or six or seven times between 1982 and 1986.

Dr. Sreenivasan found that the convictions established an entrenched pattern of sexual offending. In addition to considering the victims of appellant's Penal Code section 288a convictions in making her diagnosis, Dr. Sreenivasan considered victims who were not part of any judicial process. These victims "underscored" that appellant had "a very deviant sexual disorder," which had been "present for a lengthy period of time." Dr. Sreenivasan considered detailed police reports.

Dr. Sreenivasan discussed two additional victims, Patrick and James. It was her understanding that appellant became sexually involved with Patrick when he was a 12-or-13-year-old scout in appellant's troop, beginning in 1976 or 1977. Patrick reported that appellant had initiated acts of masturbation, both with Patrick and Patrick's brother, and had engaged in numerous sexual acts with Patrick over an extended period of time. Patrick indicated that appellant stroked his penis and digitally penetrated Patrick's anus in a public shower after they had played racketball.

Dr. Sreenivasan explained that the new information that she received regarding Patrick strengthened her diagnosis in that the additional police reports "broadens out the period of time that Mr. Langhorne was offending" and "showed an even broader number of victims, and [a] broader range of acts, the kinds of acts Patrick had mentioned in the police report were different to some degree than the acts that were mentioned by some of the other boys."

Dr. Sreenivasan also considered appellant's conduct with James, who likewise reported numerous sexual contacts with appellant. Her information was that appellant had stroked James while James looked at pornography. Appellant also had James take off his pants and then orally copulated James while James looked at pornography. James indicated that he had been orally copulated in this manner numerous times, maybe a 100 times, over a three-year period from 1983 to 1986. Appellant had continually asked James if James was sexually satisfied, which suggested to Dr. Sreenivasan that appellant viewed James as a sexual partner. James indicated that they had sexual contact three to four times a week, sometimes twice in the same day, between January 1984 and September 1985.

Dr. Sreenivasan concluded that appellant met the criteria for pedophilia. Appellant, who was born in 1956, had a recurrent pattern of sexual behaviors with 12-or-13-year-old boys over a period greatly exceeding six months. He experienced legal distress after he was arrested as a result of his behaviors, ultimately receiving a 20-year sentence.

In her view, the pedophilia "certainly effected [sic] his volitional capacity in terms of impulse control . . . ." She stated that appellant knew his behavior was against the law but his "orientation towards sexual pleasure just overrode any kind of moral or legal consideration."

Dr. Sreenivasan concluded that appellant is in the severe range of the pedophilia spectrum and his condition is chronic, that is a long lasting, ongoing condition. In her opinion, the mere passage of time does not "negate the pedophilia," which is a chronic disorder.

As to the risk of reoffense, the most significant factor in Dr. Sreenivasan's assessment was that appellant's pedophilia is a "very entrenched sexual deviancy disorder" for which appellant had failed to take advantage of treatment despite being, for a number of years, in a setting where he could have easily obtained treatment.

Dr. Sreenivasan testified that Atascadero State Hospital had a five phase treatment program eventually leading to release in the community. The first phase is called treatment readiness and does not require the participant to do anything. The second phase involves skill acquisition.

Appellant had dropped out of the treatment program and was not involved in any phase, not even in the first introductory phase. She stated: "The science would tell you that having this kind of entrenched sexual deviancy and not doing anything about it is going to be somebody who is going to be at a high risk for reoffending." She felt appellant's level of empathy or remorse was "in the plus column" in assessing the likelihood of reoffense because he had made some superficial statements about remorse but that was "the kind of thing that is pursued in great detail in treatment."

Dr. Sreenivasan acknowledged that hospital records did not reflect that appellant had engaged in any sexually inappropriate behavior at Atascadero. She did not find this particularly significant, however, since appellant "ha[d] not had the opportunity in State Prison or while at Atascadero State Hospital to be in the company of young boys." In her opinion, the pedophilia "ha[d] just been essentially in abeyance because he ha[d] been locked up . . . ."

Dr. Sreenivasan noted that a 1998 report reflected that appellant told an evaluator he had a primary sexual attraction to boys 11 to 18 and he had admitted to at least 13 additional child victims not associated with his arrest history. The remoteness in time of appellant's sexual misconduct did not raise any doubts in her mind as to her opinion regarding the risk of reoffense because of the severity of appellant's disorder and his failure to pursue treatment. In her view, past conduct is the greatest indicator of future conduct.

Dr. Sreenivasan explained that another risk factor was the onset of the sexual deviance. His sexual conduct with Patrick suggested to her that Langhorne's behavior began when he was in his early twenties. "[D]oing this early on in your early 20's also suggests . . . a more hardwiring of the deviancy."

Dr. Sreenivasan discussed some other factors relevant to risk of reoffense. A study had determined offenders with intimacy problems and sexual problems were more likely to reoffend. She found it significant that appellant did not seem to be able to develop lasting adult relationships and his primary relationships centered on 12-to-13-year-old boys. Dr. Sreenivasan found appellant's emotional identification with boys around 12 to 13 years old and his reliance on them to fulfill his social, emotional, and sexual needs relevant. In addition, appellant exhibited a sense of sexual entitlement, sexual preoccupation, and poor self regulation over a lengthy period.

Dr. Sreenivasan recognized that appellant had received a score of three on the actuarial index called Static 99, which was based on a large Canadian sample. That score corresponded to a medium low rate of recidivism and indicated a 19 percent risk of reoffense over a 15-year period. She explained, however, that appellant's score was partially attributable to the fact that appellant had a "long period of offending without getting caught" because "[m]ost of the Static 99 factors are weighted toward somebody who is caught, convicted, released and reoffends" and the Static 99 does not weigh "the intensity of the sexual deviancy." In her opinion, the Static 99 underestimated appellant's risk of recidivism.

Dr. Sreenivasan felt she had an ethical duty to interpret the Static 99 results "in the context of the individual." She recognized, however, that she was engaged in a qualitative assessment of risk and there was no empirical method of adding variables to the Static 99 and increasing or decreasing the percentage accordingly.

It was Dr. Sreenivasan's opinion that appellant was "likely to engage in a sexually violent criminal act." By "likely," she meant "[a] substantial danger, a serious and well-founded risk." Dr. Sreenivasan noted that appellant had put himself in a position to access victims by choosing to be involved in Boy Scouts and soccer coaching. All the variables in her opinion pointed to "someone who is at a likely risk, [a] serious and well-founded risk" of reoffense. In her opinion, any future sexually violent offenses committed by appellant likely would involve a predatory sexual relationship, that is a relationship promoted for the purpose of sexual gratification.

Dr. Jack Vognsen, a psychologist, was also recognized by the court as an expert in the field of diagnosis and risk assessment. He testified that he had evaluated appellant twice, once on May 30, 2003 and a second time on February 13, 2004. Appellant declined to be interviewed in May 2003.

Dr. Vognsen arrived at dual diagnoses for appellant based upon the DSM-IV-TR, his training and experience, and various materials, including appellant's criminal history, appellant's 1997 testimony, the police report from the initial investigation, and hospital records. The first diagnosis was pedophilia and a second diagnosis was general paraphilia involving an interest in adolescent boys who are changing sexually.

According to Dr. Vognsen, the police reports indicated a total of 12 or 13 victims, which included the victims involved in the crimes of which appellant was convicted. In his view, the specifics of the behavior surrounding the offenses described in the police reports indicated a classic pedophile, who grooms a victim and becomes a trusted adult before committing a sexual offense. He testified that "the police reports gave added emphasis" but he certainly would have reached the same diagnosis based upon the convictions and probation report. Dr. Vognsen also considered appellant's statement related in a May 20, 1998 report that indicated "an additional 13 victims over and above what was stated in Mr. Langhorne's arrest history." Dr. Vognsen testified, "If that report is accurate then we would have 26 potential victims." He indicated that more confidence could be placed in a diagnosis of pedophilia when there are 26 victims as opposed to one victim.

Dr. Vognsen indicated that the disorders of pedophilia and paraphilia are chronic conditions and, like a basic sexual orientation, the underlying interest cannot be changed. Dr. Vognsen stated that a basic interest in pedophilia "stays with you throughout your life," although an individual can change the expression of it and the behavior that flows from it.

As to the lack of any record suggesting appellant had engaged in any overt behavior indicative of pedophilia while in custody, Dr. Vognsen found that to be a fairly common situation because "[t]here are no boys" and "no way to express those urges." He acknowledged, however, that there was no evidence that appellant collected pornography while at Atascadero State Hospital.

As to appellant's volitional control, Dr. Vognsen stated that "[i]t seems obvious that pedophiliac urges quite overwhelm his volitional controls" since he knew his behavior was illegal, against his religious faith, and "offensive to some of the boys and their families, as well as to his Scouts perhaps" but he did not stop himself from engaging in it.

It was Dr. Vognsen's opinion that there was "a serious well-founded risk that [appellant] will reoffend if he is released without treatment." In reaching his conclusions, Dr. Vognsen started with the Static 99, an actuarial instrument that "[c]ombines ten different items to come up with a prediction of risk for reoffense." Appellant received a score of three, which indicates a 19 percent chance of being reconvicted of a sexual offense over 15 years.

Although Dr. Vognsen testified that the Static 99 was the most reliable of the actuarial risk assessment instruments, in his opinion the Static 99 was an inaccurate predictor when applied to appellant for a couple of reasons. For one thing, the Static 99 is "slanted towards people who are not very good at hiding their offenses" and a clever offender tends to get a lower score. In addition, the Static 99 underpredicts the probability of reoffense because the instrument predicts reconviction rather than reoffense and evidence shows that reoffense occurs at a much higher rate than reconviction.

Dr. Vognsen discussed other studies related to risk of reoffense. He cited a 2003 study conducted by the authors of Static 99 that indicated that a score of three on the Static 99 may actually indicate a 22 to 32 percent chance of reoffense if unreported offenses are considered. He discussed a 1999 Hanson and Bussiere study, which indicated that a child molester has a "base rate" of reoffense of 12.9 percent over a four or five year period following release. He concluded that this study suggested approximately a 26 percent chance of reconviction if the base rate were doubled to reflect an offender's lifetime. Dr. Vognsen also relied upon a 1997 Prentky study, which indicated that a child molester has a 52 percent chance of being recharged with a hands-on sex offense over 25 years following release.

Dr. Vognsen testified that the most important factor in assessing appellant's risk was his "deviant sexual orientation," which he agreed had the highest correlation to recidivism. According to Dr. Vognsen, research had shown that persons with "a primary sexual orientation towards wanting to have sex with kids" have "the highest reoffense risk." He further testified that molesters who offend exclusively against boys are at a higher risk of reoffense than offenders who offend against only girls or against girls and boys. He stated that some studies indicated the risk of reoffense attributable to molesters who offend against only boys was "perhaps double" the risk of reoffense attributable to molesters who offend against only girls. He stated: "It is even in the DSM-IV that offenders who are attracted to boys have double the ongoing risk of behavior than offenders who don't."

Another important factor weighing against appellant was his failure to avail himself of treatment at Atascadero State Hospital where he had been since 1997. Dr. Vognsen indicated that appellant had missed that opportunity "to demonstrate by concrete behavior his interest in stopping his reoffending." Dr. Vognsen indicated that an individual with a deviant sexual orientation such as appellant who does not "understand that given this type of an orientation, you are [an] ongoing reoffense risk, that you have to constantly take control of your behavior and be examining it," is at a higher ongoing risk. In his view, "[t]reatment is a way of openly stating to yourself and to the community I will take charge of my reoffense."

Dr. Vognsen further testified that it was not necessary to agree to take chemical agents to move on from the initial orientation phase to the second phase of treatment at Atascadero. Atascadero's program was state of the art.

Another factor examined by Dr. Vognsen was intimacy deficits. In assessing risk, he considers whether there is a "countervailing orientation" and whether an offender is "capable of forming an intimate bond with age appropriate peers . . . ." He stated that "the history is pretty clear that Mr. Langhorne is not very well able to form an intimate sexual relationship with age appropriate peers." Dr. Vognsen indicated that there is a sense that appellant is relating to the victims as though they are his peers or partners and his emotional identification with them is a predictor of reoffending.

On cross-examination, Dr. Vognsen agreed that the Static 99 was a more reliable or accurate tool than clinical judgment alone. He acknowledged that there was tension within the profession and some researchers were advocating a strict actuarial approach because of the limitations of pure clinical judgment. He acknowledged that one position within the professional community was that any consideration of clinical judgment simply dilutes the predictive accuracy while another group believed the Static 99 is not comprehensive and neglects potentially relevant variables. He recognized that the Static 99 does not predict when and under what circumstances an offender is likely to recidivate.

Dr. Vognsen believed it would be irresponsible to simply accept the results of the Static 99 and not apply his clinical training and judgment in evaluating the risk of reoffense. He indicated that the predominant view of professionals is that additional factors should supplement the statistical analysis of risk. While Dr. Vognsen adjusted the Static 99 assessment of risk upward for Langhorne based upon additional factors, he stated that the adjustment would be small but, in his view, significant.

Lastly, Dr Vognsen believed that any future offenses committed by appellant would "definitely be predatory," meaning that they would involve appellant establishing "a relationship for the specific purpose of victimization."

Appellant, who was called by the People, testified that he was born in 1956 and he first molested a boy in about 1979 when he was about 23 years old. Appellant acknowledged that he molested boys from about 1979 until 1986, when he was arrested. He admitted that there were approximately 15 to 20 victims.

Appellant acknowledged that he had manipulated the boys into sexual activity. He had looked for boys who he thought would be receptive to what he wanted to do and whom he could trust. He stated, "I planned, I groomed, and I molested." He indicated that he had rewarded them for coming over and engaging in sexual activity. He agreed that he had not thought he was harming the boys. In initiating the sexual relationships with the boys, appellant had rationalized that he was teaching them. In his mind at the time, they were willing partners.

Appellant held a leadership role in the Boy Scouts from about 1978 until 1986. Appellant testified that he became a soccer coach in 1980 or 1981 and coached for two or three years. He admitted that he became a coach because he was "probably just looking for more victims."

Appellant conceded that he was "afraid to get into relationships with age appropriate men or women." Although at one point he was in a sexual relationship with a woman, it lasted for no more than six months and, at the same time, he was molesting boys. Appellant acknowledged he was "not very good with relationships back then," it was easier with boys, and "[w]ith the boys [he] could pretty much do what [he] wanted to do." Appellant admitted that he told some of the boys that "if you let anybody know I could get in trouble."

Appellant met a boy named Ted through Boy Scouting. At the time, appellant believed it might be beneficial for him to "educate" Ted, who was about 12 or 13 years old, about sexual activity. He admitted that he knew such actions were against the law, immoral, and would be disapproved of by his parents.

Appellant recalled that he masturbated Ted when they were alone after a scout meeting and this occurred within a half an hour of appellant feeling sexually attracted to Ted. He engaged in approximately 20 to 25 sexual acts, which included masturbation and oral copulation, with Ted over a period of two to three years, 1979 to about 1981 or 1982. He remembered asking Ted "how he was and did he like what I did."

Appellant also remembered twin brothers, Shawn and Doug, whom he molested. He admitted groping Doug's genitals over Doug's clothes in his apartment, engaging in that act fairly often with Doug, and getting upset if Doug did not want to engage in sexual activity.

Appellant admitted molesting James and James's brother Ricky, who were neighbors. Appellant molested James beginning in 1982 or 1983 until he was arrested in 1986. He acknowledged that he showed pornography to James in his apartment. Appellant conceded that he routinely, perhaps once a week, showed pornography to James while James sat on the couch partially undressed and then orally copulated him. Appellant regularly asked questions to ensure that James was sexually satisfied. Appellant also admitted that he had molested Ricky as well and Ricky had orally copulated him.

Appellant did not remember any sexually inappropriate conduct between himself and a boy named Patrick. He denied putting a penis enlarger on Patrick's penis. Appellant admitted, however, that he put a penis enlarger on Ted.

Appellant admitted to molesting several members of the soccer team he had coached. He admitted molesting A., who was a scout and a soccer player, and using a vibrator on him. Appellant admitted engaging in oral copulation with R., another member of his soccer team, over a period of one or two years while R. was 13 or 14. Appellant also acknowledged that he had attempted to molest Matthew, another team member, and had repeatedly grabbed him in the groin.

Appellant acknowledged that he molested 10 of the boys listed on People's Exhibit 5 plus R. and Ted, who were not on the list. He did not admit molesting Patrick and two others. To the list, appellant added Donald, a member of his scout troop, and a boy named Eric. He admitted engaging in acts of oral copulation with Donald over a period of about one year when Donald was 14 years old. Appellant admitted engaging in "probably more than 15" acts of oral copulation with Eric when Eric was about 13 years old. Appellant acknowledged writing Eric a letter of apology.

Appellant admitted molesting a boy named Christopher, a member of his scout troop, on two different days, a week apart. The first time appellant rubbed Christopher's penis and the second time appellant rubbed Christopher's penis and orally copulated him.

He acknowledged that a boy named Timmy, then age 11, was also a victim.

Appellant admitted that he pled no contest to all criminal charges and he was ultimately sentenced to 20 years in state prison. He stated that he first went to Atascadero State Hospital in December 1997. Appellant agreed that he had not had the opportunity to act on his sexual attraction since June 1986.

Appellant stated he would describe himself as a homosexual based upon his sexual attraction to males. He confirmed, however, that he was present when Dr. Sreenivasan testified about pedophilia and when one of the doctors described pedophilia. He believed he understood "what pedophilia is." When asked "do you think you are a pedophile as you sit here today," appellant replied, "Yes." When asked whether he agreed with the evaluator's opinion that he was a pedophile, he answered, "According to the definition, yes." He agreed he was a pedophile and he was not cured. Appellant testified that he believed that pedophilia cannot be cured and he can only seek to control it.

Later at trial, appellant denied fantasizing about underage boys or acting on his attraction to them and indicated he was unsure if he had a mental disorder. Although he admitted being attracted "young people," he thought his attraction had moved to older, more muscular boys, ages 17 to 23.

Appellant acknowledged that there was "always the potential" he would molest young boys again given the opportunity but he believed that he could control himself. He testified that he had come to recognize that many of his past actions were detrimental to the boys. A number of times, appellant testified that he recognized that he had caused emotional and psychological damage to the boys and he had harmed their families and friends as well. He acknowledged that "this harm could last potentially for the rest of their lives" and "effect [sic] their future relationships."

Appellant indicated that he now felt more comfortable having a relationship with an adult male since he had experienced a positive relationship with a male cellmate, with whom he engaged in a couple of acts of oral copulation while in prison in 1995 or 1996. He also mentioned that he was almost 50 years old and he had matured. He stated that he had "greater appreciation of the consequences [of] going to prison."

Appellant believed he could recognize risky situations and in the future he would avoid opportunities for reoffense. He would avoid youth groups, establish a support group with his family, and get involved with the church again. Appellant acknowledged, however, that, at the time he was molesting boys, he was involved in the church, the scout troop was church-sponsored, and he knew then that molesting was wrong, both legally and according to the church.

Appellant also conceded that he had refused to continue with phase two of treatment. He indicated that he was unwilling to proceed with the program because he did not want to sign a contract admitting he needed treatment or accept chemical castration and because his participation was not a guarantee he would get out. He also disliked the program's lack of confidentiality and believed that therapy was impossible without confidentiality. He did not believe that he had a greater chance of controlling himself if he participated in Atascadero's treatment program.

Patrick, who was born in 1964, testified that he met appellant through Boy Scouting when he was about 13 or 14 years old and appellant was an adult leader. He testified that he would go to appellant's "apartment, initially just for scouting things." He estimated that the first sexual touching occurred within a couple months of meeting appellant.

Appellant was available and Patrick thought it was "cool" to have a relationship with someone older. Over time, their interaction escalated from "hey, cool, you got some magazines" to overt sexual activities. On a visit to the apartment, Patrick noticed appellant's European "hardcore" pornographic magazines. Patrick asked to take a look at them in the bathroom. When Patrick noticed sexual paraphernalia, appellant told him "these really feel good" and encouraged Patrick to try a vibrator in another room. Eventually, devices were used out in the open. Patrick visited appellant at his apartment several times a week.

Appellant was "always like here is this, this is how you use it." Patrick indicated that their use of devices "was kind of a mutual thing." Patrick indicated that his brother, who was 18 months younger, was also often at the apartment and sometimes involved. Patrick also recalled using a vibrating ring, which he put on himself. At some point later in their relationship, appellant put a "penis enlarger" on Patrick and pumped it up. They used it on Patrick two or three times. Appellant first applied a gel to Patrick's penis. Patrick thought that sexual devices had been used on him about once or twice a week over a period of a year and a half to two years.

Patrick and appellant also went to the movies, played a lot of racquetball, went to the commissary and bowling alley at Moffet Field, and played soccer. Patrick recalled that appellant would stick a finger in Patrick's anus when they were in the shower of the racketball club or grab Patrick's crotch. Appellant would stroke Patrick's penis and ask if it felt good. Patrick thought this type of inappropriate conduct occurred in the shower at least 10 times. In the facility's hot tub, appellant would often reach over and grab Patrick or put his hand under Patrick's buttocks. Patrick thought this conduct in the hot tub occurred less than five times.

Patrick made a conservative guess that appellant had touched him inappropriately between 50 to 75 times. At the time of the incidents, however, Patrick did not think they were inappropriate. Appellant never used physical force or violence or verbal intimidation. The inappropriate sexual touching continued for "[p]robably a good two and half years." Patrick stopped seeing appellant when he was about 16 years old after a friend, who had visited appellant's apartment with Patrick, told Patrick that appellant was weird and Patrick should stop hanging around with him.

On April 28, 2004, the jury returned a verdict finding appellant to be a sexually violent predator within the meaning of Welfare and Institutions Code section 6600. The court ordered appellant recommitted until November 14, 2005 and directed that he be transported to Atascadero State Hospital.

B. Sufficiency of the Evidence

"The SVPA defines a sexually violent predator as someone who 'has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior' if released. (§ 6600, subd. (a)(1), italics added.)"[2] (People v. Roberge (2003) 29 Cal.4th 979, 982.) Triers of fact "must find beyond a reasonable doubt that the defendant is likely to commit sexually violent predatory criminal acts before the defendant can be committed as a sexually violent predator." (People v. Hurtado (2002) 28 Cal.4th 1179, 1186; see People v. Roberge, supra, 29 Cal.4th at p. 985.) The term "predatory" includes an act directed toward "an individual with whom a relationship has been established or promoted for the primary purpose of victimization." (§ 6600, subd. (e).)

The phrase "danger to the health and safety of others'" in section 6600, subdivision (a), "does not require proof of a recent overt act while the offender is in custody." (§ 6600, subd. (d).) The phrase "likely [to] engage in sexually violent criminal behavior" in section 6600, subdivision (a), means that "the person is found to present a substantial danger, that is, a serious and well-founded risk, of committing such crimes if released from custody." (People v. Roberge, supra, 29 Cal.4th at p. 988, fn. omitted.)

Appellant maintains that "[t]he record fails to establish with the requisite degree of certainty that appellant . . . currently experiences 'recurrent, intense sexually arousing fantasies, sexual urges, or behaviors' " resulting in clinically significant distress or impairment. Appellant complains that the experts failed to support their current diagnoses with "citation to studies or even personal clinical experience." He asserts that there is no evidence of clinically significant distress or impairment in social, occupational, or other important areas of functioning and there is no evidence "demonstrating the validity of the premise that the passing of 18 years has no significant bearing on the currency of the pedophilia diagnosis or volitional control." In sum, he argues there is insufficient evidence to show that he currently suffers a diagnosed mental disorder that either impairs his volitional control or presents a substantial danger of reoffending if released.

The experts' opinions that appellant met the diagnostic criteria for a diagnosed mental disorder were based upon their review of appellant's extensive history of sexually inappropriate conduct with boys over a substantial period. When asked how does she know that appellant is still a pedophile given the passage of time, Dr. Sreenivasan replied: "[T]he best way I can answer that is by again referring you back to his history with a real entrenched pattern of pedophilic interests and behaviors, just numerous acts, probably at least a few hundred if you totalled up all of the acts against all of these many victims. So that just really speaks to how entrenched a kind of orientation it has been in this man. [¶] In terms of the issue of the passage of time, pedophilia is a chronic disorder. He hasn't acted out. He has not had the opportunity in State prison or while at Atascadero State Hospital to be in the company of young boys. He hasn't had the opportunity to replicate the kind of situation he had in the 80's where he was in this position of trust and authority and friendship with boys. And so the mere passage of time for him with his kind of history in my opinion just doesn't negate the pedophilia."

Dr. Vognsen testified regarding the validity of relying upon old reports to diagnose a current mental disorder: "There are some disorders which are acute and can be cured, meaning they can be completely changed. To some disorders we think cannot be changed. The underlying disorder is still there no matter what you do about it. These disorders of pedophilia and paraphilia are those kind we think it is like a basically [sic] orientation, heterosexual, homosexual if you have a basic interest in pedophilia that underlying interest stays with you throughout your life. You can change the expression of it. You can change the behavior that flows from that disorder. You can't change your basic interest." Dr. Vognsen confirmed that a person diagnosed with pedophilia has a chronic disorder and is always going to be a pedophile.

Dr. Sreenivasan spoke to the criterion of distress. She indicated the stress could be personal, social, or legal distress. She stated that, although he did not exhibit distress over his behaviors before his arrest, appellant's "distress came to light after he was arrested, and this is publicized" and "[h]e then faced the music, so to speak." He in effect suffered legal distress in the form of arrest and punishment in state prison.

Both experts discussed appellant's lack of volitional control. Each indicated that appellant's pedophilia affected his volitional control in that his sexual orientation overrode any kind of moral or legal consideration. The evidence showed that appellant had known the molesting was wrong, legally and according to his church, but he had committed the acts anyway. As to likelihood of reoffense, both experts found that there was "a substantial danger, a serious and well-founded risk" that appellant would reoffend based upon the multiple factors, which they discussed extensively.

While it is true that "[a]n expert's opinion which rests upon guess, surmise or conjecture, rather than relevant, probative facts, cannot constitute substantial evidence" (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318, fn. 3), the record does not demonstrate that the experts' diagnoses or opinions in this case were so flawed. The record shows that the People's experts considered appellant's full history and relied upon established DSM-IV diagnostic criteria and narrative descriptions of the mental disorders in making their present diagnoses. They based their opinions on a full review of a variety of materials. In assessing the risk of reoffense, they considered the Static 99 and other studies and applied their own clinical judgment. They explained in detail the specific risk factors they considered relevant. Both experts testified that pedophilia is generally understood by the profession to be a chronic condition and explained their reasons for determining that appellant's mental disorder persists.

Any flaws or deficiencies in the experts' reasoning, inferences, or opinions were challengeable through cross-examination. (See Evid. Code, § 721, subd. (a).) Insofar as appellant declined to be interviewed and refused to participate in treatment, diagnoses of any mental disorder and assessment of future dangerousness necessarily had to be based on reports and records concerning appellant's past actions and statements and inferences therefrom. The law expressly states that proof of a recent overt act while the offender is in custody is not required to establish future dangerousness. (§ 6600, subd. (d).) The remoteness in time of appellant's sexual activity with boys, however, was a potential weakness in the expert's opinions that was appropriate to explore on cross-examination or possibly through the testimony of an opposing expert.

In any event, the opinions of the People's experts were not a matter of pure speculation or guesswork and, therefore, their testimony was not, as a matter of law, entirely without probative value. It was up to the factfinder to decide what weight to give the expert opinions. (See In re Scott (2003) 29 Cal.4th 783, 823.)

Here, as in general, "the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact." (Evid. Code, § 411.) "In reviewing the record to determine the sufficiency of the evidence, this court may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment. (People v. Mercer (1999) 70 Cal.App.4th 463, 466 . . . .)" (People v. Poe (1999) 74 Cal.App.4th 826, 830; see Estate of Teel (1944) 25 Cal.2d 520, 527.) Substantial evidence supports the jury's determination that appellant is a SVP within the meaning of section 6600.

C. Substitution of Counsel

Pursuant to section 6603, subdivision (a), a person subject to commitment under the SVP Act has a right to assistance of counsel. "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." (Ibid.) We assume for purposes of this appeal that Marsden (People v. Marsden (1970) 2 Cal.3d 118) sets the appropriate standard for substitution of counsel in SVP proceedings.

On March 25, 2004, the date calendared for motions in limine in anticipation of an April 19, 2004 jury trial, appellant filed a declaration in which he indicated there was a "fundamental breakdown in relationship" between his defense counsel and himself. He asserted that his counsel had failed or refused to confer with him regarding preparation of a defense, communicate with him, subpoena witnesses favorable to the defense, conduct necessary investigations, prepare and present an affirmative defense, secure and present critical expert witnesses, and file motions necessary to his defense. Appellant stated that he had sent counsel four letters but counsel had answered once and they had spoken four times.

At the hearing on his motion to substitute counsel, appellant complained that his counsel failed to call certain hospital staff members (a registered nurse, a psychiatrist, and technicians) as witnesses on his behalf although he had suggested them to counsel. He believed they could testify regarding his appropriate behavior in the hospital. Appellant next complained that his counsel failed to subpoena any expert witness and he believed a professional on his side was necessary to challenge the state's experts. Appellant stated that his counsel had chosen not to use a Dr. Halon and he had "mentioned two witnesses, Dr. Donaldson and Dr. Podboy, . . . but nothing ha[d] ever come of it." Appellant further complained that his counsel had not acted on his requests for a number of pretrial motions, including a motion "on prosecutorial misconduct," a motion claiming ineffective assistance of counsel, a motion to exclude "the expert witnesses using the Kelly-Frye standards," and a motion "to exclude the Static 99, RRASOR and the PCL-R test."

Appellant's counsel responded to these concerns at the hearing. In regard to counsel's decision to not call hospital staff to testify that appellant had not engaged in any inappropriate sexual conduct in the hospital, counsel indicated that such evidence would have been of limited probative value since "behavior is proscribed and prohibited by the hospital," any adverse information would have appeared in the doctors' evaluations, and the most recent evaluation generally indicated that appellant was a "very compliant" and "good patient." He was "more comfortable from a tactical perspective" with eliciting the good information from the People's experts rather than taking the risk that a hospital staff member might "come across in a negative light or present Mr. Langhorne in a negative light to the jury."

Appellant's counsel reported that he had consulted an expert and obtained a report. He had concluded that the expert would not be a helpful witness on appellant's behalf. He indicated that appellant had scored well on the Static 99 and the score was "beneficial." He had no basis for believing that another doctor would be able to give appellant a better score on the Static 99 since appellant was scored based upon "static factors that occurred in the past." If the SONAR test was used, his tactical approach would be to show that the test could not be validly applied to appellant because it was derived from a different type of population.

Counsel understood that appellant believed that the prosecution acted improperly by both prosecuting him "back in the 80's for sex crimes" and then having him committed as a SVP and "the prosecution should have had to either elect one or the other." Counsel had explained to appellant that the SVPA had been upheld as constitutional. It was his judgment that there was no legal basis for a "malicious prosecution motion" on the ground that appellant was "previously criminally prosecuted and [he was] now suffering a civil commitment."

As to ineffective assistance of counsel, counsel understood that appellant's grievance concerned his original trial attorney in the criminal prosecution. Counsel concluded that this issue was not cognizable in the context of an SVP proceeding, which involves different issues.

Finally, counsel had determined that "the RRASOR and the Static 99 would survive a Kelly-Frye challenge" and Kelly-Frye was not an appropriate objection with regard to expert witnesses.

At this point in the hearing, the court asked appellant if there was anything else he wanted to say and told appellant that he was entitled to "the last word." Appellant had nothing to add. The court denied appellant's motion to substitute counsel, finding appellant was being adequately represented.

"A trial court should grant a defendant's Marsden motion only when the defendant has made 'a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation' (People v. Crandell (1988) 46 Cal.3d 833, 859 . . .), or stated slightly differently, 'if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result' (People v. Smith, supra, 6 Cal.4th at p. 696)." (People v. Hines (1997) 15 Cal.4th 997, 1025-1026.)

"We review a trial court's decision declining to relieve appointed counsel under the deferential abuse of discretion standard. (People v. Silva (2001) 25 Cal.4th 345, 367 . . . ; Marsden, supra, 2 Cal.3d at p. 123.)" (People v. Jones (2003) 29 Cal.4th 1229, 1245.) "Denial 'is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would "substantially impair" the defendant's right to assistance of counsel. [Citations.]' (People v. Webster (1991) 54 Cal.3d 411, 435 . . . .)" (People v. Barnett (1998) 17 Cal.4th 1044, 1085.)

Appellant argues that the trial court failed to conduct an adequate inquiry into counsel's preparation for trial, pointing to counsel's alleged lack of any cogent defense theory at trial. He claims that it is "practically" "ineffective assistance of counsel per se" not to call a defense expert at trial because various court opinions indicate a range of possible defense arguments that could be made based upon the testimony of a defense expert. He maintains that, "in the absence of any discernable trial strategy," the refusal to present any Kelly-Frye argument, the refusal to call hospital witnesses, and the refusal to retain and present any expert witness together demonstrate ineffective assistance of counsel and an irreconcilable conflict in the attorney-client relationship.

We do not evaluate whether the trial judge's ruling constituted an abuse of discretion based upon subsequent developments at trial. "It is the very nature of a Marsden motion, at whatever stage it is made, that the trial court must determine whether counsel has been providing competent representation. Whenever the motion is made, the inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future. But the decision must always be based on what has happened in the past." (People v. Smith (1993) 6 Cal.4th 684, 694-695.)

In this case, the court did not reject any "offer to relate specific instances of misconduct" (People v. Marsden, supra, 2 Cal.3d at p. 124) or refuse to "consider any specific examples of counsel's inadequate representation that the defendant wishes to enumerate." (People v. Webster (1991) 54 Cal.3d 411, 435.) Appellant was permitted to fully voice his concerns and his counsel was given an opportunity to respond. (See People v. Smith, supra, 6 Cal.4th at p. 694.) Trial counsel offered reasonable explanations for his choices. The court was not required to grill counsel regarding his intended defense strategy at the upcoming trial. We discern no failure to conduct a proper Marsden inquiry.

The record before us does not demonstrate that the court abused its discretion in determining none of appellant's complaints demonstrated that his trial counsel had rendered ineffective assistance or that they were embroiled in an irreconcilable conflict. As to attorney-client communications, appellant's declaration showed counsel and he had exchanged letters and spoken orally. While counsel had apparently answered only one of defendant's four letters, "the number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence." (People v. Silva (1988) 45 Cal.3d 604, 622.)

The Supreme Court has never required counsel to investigate all prospective witnesses. (People v. Barnett (1998) 17 Cal.4th 1044, 1111.) In addition, " '[c]ompetent representation does not demand that counsel seek repetitive examinations of the defendant until an expert is found who will offer a supportive opinion.' (People v. Williams (1988) 44 Cal.3d 883, 945 . . . ; accord, People v. Payton (1992) 3 Cal.4th 1050, 1078 . . . .)" (People v. Wash (1993) 6 Cal.4th 215, 270.) "[D]efense lawyers are not expected to practice the legal equivalent of defensive medicine by ordering multiple tests in the hope that one will produce useful information, 'tests they forego at peril of being branded incompetent.' ([In re Grissom (1978) 85 Cal.App.3d 840] 849.)" (People v. Williams (1988) 44 Cal.3d 883, 946.)

The decision whether to call a particular witness is generally a matter of trial tactics. (People v. Williams (1970) 2 Cal.3d 894, 905.) In this case, counsel offered sound tactical reasons for his decision not to call hospital staff. In addition, counsel consulted with Dr. Hanlon. The consultation and the resulting report apparently did not produce favorable evidence or any information suggesting that appellant might benefit from consultation with or subpoena of other experts. The record does not establish that counsel acted incompetently in not seeking another expert to testify at trial. The record suggests that counsel intended to focus on the "beneficial" score that appellant received on the Static 99, which would not require the testimony of an opposing expert, who would be open to cross-examination. We are not aware of any authority establishing that counsel must necessarily call an opposing expert to render effective assistance.

As to appellate counsel's failure to pursue the proposed motions, a trial counsel is not ineffective for failing to bring a groundless or frivolous motion (see People v. Kipp (2001) 26 Cal.4th 1100, 1127; People v. Weaver (2001) 26 Cal.4th 876, 931) or failing to bring all conceivable motions (People v. Freeman (1994) 8 Cal.4th 450, 509). "Rather, competent counsel should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances." (People v. Freeman, supra, 8 Cal.4th at p. 450.)

The court could reasonably conclude, based upon trial counsel's explanations and the applicable law, that counsel's decisions to not pursue the motions desired by appellant did not constitute ineffective assistance. For example, as to trial counsel's decision to not make any Kelly challenge (People v. Kelly (1976) 17 Cal.3d 24),[3] current case law indicates that expert testimony regarding the likelihood of sexual reoffense is not scientific evidence whose admissibility is subject to the Kelly test, even if such expert partially relies on an actuarial instrument such as the Static 99. (See People v. Ward (1999) 71 Cal.App.4th 368, 373; People v. Therrian (2003) 113 Cal.App.4th 609, 611, 615-616 [a Kelly hearing is not required when an expert's opinion considers but does not rely exclusively upon the results of a Static-99 test]; see also Cooley v. Superior Court (2002) 29 Cal.4th 228, 259 [court, in making a probable cause determination, did not exclude testimony from experts relying upon the Static 99 and properly considered the persuasiveness of such evidence]; People v. McDonald (1984) 37 Cal.3d 351, 373 [Supreme Court has "never applied the Kelly-Frye rule to expert medical testimony, even when the witness is a psychiatrist and the subject matter is as esoteric as . . . the prediction of future dangerousness . . ."]), overruled on another point in People v. Mendoza (2000) 23 Cal.4th 896, 914.) The court below could reasonably conclude that counsel's decision to not raise Kelly constituted effective assistance.

A counsel's decision whether or not to bring a particular motion is generally a strategic matter. (See People v. Turner (1992) 7 Cal.App.4th 1214, 1220-1221 [decision to not file a suppression motion].) "[A] disagreement as to which motions should be filed is not sufficient reason to require substitution of counsel. (People v. Walker (1976) 18 Cal.3d 232, 238 . . .; People v. Hill, supra, 148 Cal.App.3d at p. 753.)" (People v. Turner, supra, 7 Cal.App.4th at p. 1219; see People v. Smith (2003) 30 Cal.4th 581, 606 ["Disagreement concerning tactics, by itself, is insufficient to compel discharge of counsel"].) Refusal to accede to a client's demands on various tactical matters does not, standing alone, justify substitution of trial counsel. (See People v. Barnett (1998) 17 Cal.4th 1044, 1092.) "[A] 'conflict' regarding tactical matters neither justifies substitution of counsel nor signals a fundamental breakdown in the attorney-client relationship. (People v. Welch (1999) 20 Cal.4th 701, 728-729 . . . ; People v. Lucky, supra, 45 Cal.3d at p. 282.)" (People v. Nakahara (2003) 30 Cal.4th 705, 719; see People v. Barnett, supra, 17 Cal.4th at p. 1108 ["While defendant never ceased to express his frustration with counsel's choice of strategy and tactics, that alone did not warrant counsel's substitution"].)

In sum, the record does not show that the trial court failed to conduct a proper Marsden inquiry or abused its discretion in refusing to substitute counsel.

D. Crawford and the SVPA

Defense counsel asserted at trial that the People's exhibit one, a police report, was inadmissible hearsay. The court ruled that the police report was admissible under section 6600 with the redaction of the statements relating to James. This ruling was consistent with the holding in People v. Otto (2001) 26 Cal.4th 200.

In Otto, supra, 26 Cal.4th 200 the trial court had admitted documentary evidence, including the abstract of judgment and the presentence report from Otto's felony convictions. (Id. at p. 204, fn. 2.) 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" (id. at p. 203) in a 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." (Id. at p. 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."[4] (Id. at p. 211.)

Appellant maintains that Otto's reasoning "must now be revisited in the wake of Crawford." Crawford v. Washington (2004) 541 U.S. 36 held that the 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 indicium of reliability. (Id. at pp. 68-69 and 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"].) According to appellant, Crawford requires a trial court in a SVP proceeding to exclude victims' statements contained in a police report from evidence and to instruct the jury to disregard expert opinion based upon such inadmissible hearsay. He also asserts that "the indicia of reliability required to satisfy due process standards are lacking in this case as to the police reports."

We first address whether appellant's Crawford or due process claims were preserved for appeal. Since appellant's trial counsel objected to admission of the police report solely on statutory hearsay grounds (see Evid. Code, § 1200 [hearsay generally inadmissible]), we conclude appellant waived his present Crawford claims or any analogous due process objections by failing to object on those specific bases below. (Evid. Code, § 353; see People v. Rodrigues (1994) 8 Cal.4th 1060, 1118 [confrontation clause claim not preserved]; People v. Bolden, supra, 29 Cal.4th at p. 546 [due process claim not preserved].)

In any event, appellant's Crawford claim is without merit. 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." SVP commitment proceedings are not criminal proceedings; they are civil proceedings. (See People v. Hurtado, supra, 28 Cal.4th at p. 1192.) Therefore, the Crawford decision does not apply to SVP commitment proceedings. In addition, since our Supreme Court's holding in Otto was not based upon the U.S. Constitution's confrontation clause, it was not abrogated by Crawford and this court continues to be bound by the Otto decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Furthermore, Crawford does not bar the admission of out-of-court statements not admitted for the truth of the matter asserted. (See Crawford v. Washington, supra, 541 U.S. at p. 59, fn. 9.) We have no reason to believe that due process bars admission of nonhearsay, that is evidence of a statement not offered for the truth of the matter stated (see § 1200, subd. (a)), in a SVP or other civil proceeding merely because there was no opportunity to confront the declarant. Here, to the extent the People's experts related victims' statements to explain the basis and reasons for their opinions and not as substantive proof, their testimony was not hearsay (Evid. Code, § 1200, subd. (a); see People v. Davis (2005) 36 Cal.4th 510, 550) and, therefore, their testimony was not inadmissible on hearsay grounds (see Evid. Code, § 1200, subd. (b)).

Finally, " '[a]n expert may generally base his opinion on any "matter" known to him, including hearsay not otherwise admissible, which may "reasonably . . . be relied upon" for that purpose. (Evid. Code, § 801, subd. (b); In re Fields (1990) 51 Cal.3d 1063, 1070 . . . .) On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them.' " (People v. Carpenter (1997) 15 Cal.4th 312, 403.) However, "a witness's on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into 'independent proof' of any fact. [Citations.]" (People v. Gardeley (1996) 14 Cal.4th 605, 619.)

"Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert's opinion." (People v. Thomas (2005) 130 Cal.App.4th 1202, 1210; see Evid. Code, § 721, subd. (a).)

Hearsay concerns with regard to expert testimony will most often "be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth. (Coleman, supra, 38 Cal.3d at p. 92.)" (People v. Montiel (1993) 5 Cal.4th 877, 919; see Evid. Code, § 355.) Where there is a great potential for undue prejudice because out-of-court statements are related in detail, an objection pursuant to section 352 may be interposed. (See People v. Carpenter, supra, 15 Cal.4th at p. 403; People v. Coleman (1985) 38 Cal.3d 69, 92-93.) "Because an expert's need to consider extrajudicial matters, and a jury's need for information sufficient to evaluate an expert opinion, may conflict with an accused's interest in avoiding substantive use of unreliable hearsay, disputes in this area must generally be left to the trial court's sound judgment. (Nicolaus, supra, 54 Cal.3d at p. 582 . . . ; see People v. Cole (1956) 47 Cal.2d 99, 105. . . .)" (People v. Montiel, supra, 5 Cal.4th at p. 919.) In this case, appellant's trial counsel did not object to the experts' testimony on Evidence Code section 352 grounds and, consequently, any such claim was not preserved for our review. (Evid. Code, § 353; see People v. Bolin (1998) 18 Cal.4th 297, 321.)

E. Effective Assistance of Counsel

Appellant argues that his counsel provided ineffective assistance by failing to object on hearsay grounds to police reports "detailing the encounters with the unadjudicated victims" that were relied upon by the People's experts but were not admitted into evidence. Appellant maintains that there was no plausible tactical reason for his trial counsel's failure to extend his hearsay objection to the other police reports considered by the experts and the omission was prejudicial because the People's experts "relied heavily" upon the victims' statements in those reports in reaching their diagnoses and their opinions that he was likely to reoffend.

"To prevail on [an ineffective assistance] claim, defendant must show both: (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced his defense. (Strickland v. Washington (1984) 466 U.S. 668, 687-694 . . . ; People v. Ledesma (1987) 43 Cal.3d 171, 216-218 . . . .) To establish prejudice, defendant must show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. (See Strickland v. Washington, supra, 466 U.S. at pp. 693-694 . . . ; In re Cordero (1988) 46 Cal.3d 161, 180 . . . .) A reasonable probability is ' "a probability sufficient to undermine confidence in the outcome." ' (In re Cordero, supra, 46 Cal.3d at p. 180 . . . , quoting Strickland v. Washington, supra, 466 U.S. at pp. 693-694 . . . .)" (People v. Davis (2005) 36 Cal.4th 510, 551.)

Appellant's ineffective assistance argument must be rejected. As discussed above, "[a]n expert may rely on hearsay in forming his opinion. (Evid. Code, § 801, subd. (b).)" (People v. Arias (1996) 13 Cal.4th 92, 184.) The record does not reflect that the experts' testimony concerning the victims' statements in police reports was received for the truth of the matter asserted and, therefore, the testimony was not hearsay and was not subject to a hearsay objection. (Evid. Code, § 1200; Cal. Law Revision Com. com., 29B pt. 4 West's Ann. Evid. Code (1995 ed.) foll. § 1200, p. 4.) Appellant's trial counsel did not

act incompetently by not objecting on hearsay grounds to the expert's reliance on those police reports.

The judgment is affirmed.

______________________________

ELIA, Acting P. J.

WE CONCUR:

_____________________________

MIHARA, J.

_____________________________

McADAMS, J.

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[1] All further statutory references are to Welfare and Institutions Code unless otherwise specified.

[2] Section 6600, subdivision (b), provides: " 'Sexually violent offense' means the following acts when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, and that are committed on, before, or after the effective date of this article and result in a conviction or a finding of not guilty by reason of insanity, as provided in subdivision (a): a felony violation of paragraph (2) of subdivision (a) of Section 261, paragraph (1) of subdivision (a) of Section 262, Section 264.1, subdivision (a) or (b) of Section 288, or subdivision (a) of Section 289 of the Penal Code, or sodomy or oral copulation in violation of Section 286 or 288a of the Penal Code." "If the victim of an underlying offense that is specified in subdivision (b) of Section 6600 is a child under the age of 14 and the offending act or acts involved substantial sexual conduct, the offense shall constitute a 'sexually violent offense' for purposes of Section 6600." (§ 6600.1, subd. (a).) "Substantial sexual conduct" is statutorily defined as "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." (§ 6600.1, subd. (b).) No argument is made on appeal that there is insufficient evidence of the predicate sexually violent offenses.

[3] Kelly "held that evidence obtained through a new scientific technique may be admitted only after its reliability has been established under a three-pronged test. The first prong requires proof that the technique is generally accepted as reliable in the relevant scientific community. (Id. at p. 30 . . . .) The second prong requires proof that the witness testifying about the technique and its application is a properly qualified expert on the subject. (Ibid.) The third prong requires proof that the person performing the test in the particular case used correct scientific procedures. (Ibid.)" (People v. Bolden (2002) 29 Cal.4th 515, 544-545.)

[4] The California Supreme Court did not decide whether Otto had "a due process right to call witnesses such as the victims or other percipient witnesses." (People v. Otto, supra, 26 Cal.4th at p. 214; but see Evid. Code, § 804 [right to call and examine declarant where expert's opinion is based upon statement of another person].)