P. v. Whitlock

Filed 6/29/06 P. v. Whitlock CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Christine V. Pate, Judge. Affirmed.

Anthony Whitlock appeals from an order of recommitment after the court, following a bench trial, determined he "is and remains" a sexually violent predator (SVP) within the meaning of the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.)^[1] and extended his Department of Mental Health commitment for another two-year term. (§ 6604.1.) Whitlock contends the court erred in concluding he is an SVP because it relied on documents probative only of his past mental state, and thus its order was not based on evidence he had a currently diagnosed mental disorder as the SVPA requires. Whitlock further contends the court's decision was improperly based on inadmissible statements within psychological evaluations and police reports. We affirm the order.

PROCEDURAL BACKGROUND^[2]

In September 2002, a court found Whitlock to be an SVP within the meaning of sections 6600 and 6604 and committed him to the California Department of Mental Health (Atascadero State Hospital) under section 6604.1. In June 2004, the People filed a petition to recommit Whitlock to Atascadero for an additional two-year term. Whitlock waived his right to be personally present at the hearing and waived his right to a jury trial. The court considered the matter on the petition, to which Whitlock submitted subject to "any stated objections to any admitted evidence."

In support of its petition, the People included reports of psychologists Thomas MacSpeiden and Gary Zinik. Both stated that the purpose of their evaluations was to determine whether Whitlock still met the criteria for civil recommitment under the SVPA. Both had requested interviews of Whitlock, who declined when he was not permitted to have his attorney present and the interview audiotaped.

In preparing his April 16, 2004 report, Dr. MacSpeiden conducted an interview of Atascadero staff, reviewed Whitlock's treatment file, and considered, among other information, clinical evaluation reports from May 2002 and April and May 2001, various California Department of Corrections reports and forms, December 1998 and 1997 psychiatric evaluation reports, clinical evaluation reports prepared in September and November 1997, court records and reports from 1989 to 1994, and a Department of Justice printout of Whitlock's recorded criminal history from 1971 to 1992. He noted in particular that during the past year, Whitlock had "obstinately refused treatment and rationalized his position" and that a year previously, Whitlock "was not attending [Alcoholics Anonymous (AA)] group because he said there were too many homosexuals in it." By mid-to-late 2003, Whitlock was still not interested in attending AA group meetings or even the first phase of the sexual offender treatment program offered at Atascadero, and he "had no comment about his history of sexual deviance." Although Dr. MacSpeiden could not propose voluntary community treatment to Whitlock because of Whitlock's refusal to meet with him, the psychologist observed that such a proposal would be ill-advised given Whitlock's minimizing of guilt in his qualifying offenses, lack of remorse, and unwillingness to engage in treatment at Atascadero. Dr. MacSpeiden found Whitlock's prognosis in voluntary treatment in the community would be poor, and would jeopardize persons in the community.

For his April 8, 2004 report, Dr. Zinik similarly considered police reports and court records from 1989 to 2000; criminal database information; Atascadero records including Whitlock's social history, admission psychiatric evaluation, forensic report, annual psychiatric update and treatment plans from 2002 to 2004; and Whitlock's SVP psychological evaluations from November and December 1997, April and May 2001, and May and September 2002. Dr. Zinik also conducted a telephone consult of an Atascadero social worker. His review likewise highlighted Whitlock's continued refusal to participate in Atascadero's sex offender treatment program; Dr. Zinik noted that in an April 2004 telephone interview, the Atascadero social worker informed him that Whitlock "is not in treatment and has no interest in treatment."

After reviewing Whitlock's criminal history, social and developmental history, medical and psychiatric history, and treatment progress, both Dr. MacSpeiden and Dr. Zinik determined Whitlock suffers from "Pedophilia, Sexually Attracted to Both Females and Males, Nonexclusive Type." They concluded Whitlock has a diagnosable mental disorder that predisposed him to the commission of criminal sexual acts, and that he was likely to engage in sexual and violent predatory criminal behaviors as a result of his diagnosed mental disorder without appropriate treatment and custody.

Based upon its review of the petition, the court found beyond a reasonable doubt that Whitlock "is and remains a sexually violent predator." In part, the court reasoned: "The bottom line by his own choice, Mr. Whitlock has used an excuse of alcoholism, although it's now deemed to be in remission, but that is inconsistent with the facts that are set forth in the reports as being the excuse for his acts. That his acts or types of behavior go back a long time. The first event being when he was an eight-year-old. Although not an offense from a criminal offense point of view, that he has chosen not to participate in the available programs unless they can submit one that's two years in duration. He – that includes participation in AA meetings. He's now in a single room and essentially stays to himself and has very little interaction with anyone. Both reports, and I've seen it often that they don't agree. Both agree that his [Static-99] is 7 which is a high risk. And it appears without his participation in appropriate treatment, . . . that his documented tendencies would continue and the end result is that he continues as a diagnosis and as a finding that he is a sexually violent predator."

DISCUSSION

I. SVPA Standards

"The SVPA . . . permits the involuntary civil commitment or recommitment, for two-year terms of confinement and treatment, of persons who are found, in jury trials

(§ 6604), and beyond a reasonable doubt (§ 6603, subd. (a)), to be 'sexually violent predator[s]' (§ 6604). The Act defines a sexually violent predator as one '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.' (§ 6600, subd. (a) (1).) A ' "[d]iagnosed mental disorder" includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.' (Id., subd. (c).)" (People v. Williams (2003) 31 Cal.4th 757, 764.)

In order to establish that a defendant is an SVP, the People must prove "(1) [the] defendant was convicted of two separate sexually violent offenses; (2) he had a diagnosable mental disorder that made him a danger to the health or safety of others; (3) his disorder makes it likely he will engage in sexually violent criminal conduct if released; and (4) his sexually violent criminal conduct will be predatory in nature." (People v. Fulcher (2006) 136 Cal.App.4th 41, 52 (Fulcher), citing People v. Roberge (2003) 29 Cal.4th 979, 985, Cooley v. Superior Court (2002) 29 Cal.4th 228, 243 & People v. Hurtado (2002) 28 Cal.4th 1179, 1186.) Under the SVPA (§ 6600, subd. (a)), "a person is 'likely [to] engage in sexually violent criminal behavior' if at trial 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." (Roberge, 29 Cal.4th at p. 988, emphasis omitted; see also People v. Williams, supra, 31 Cal.4th at p. 776.) "Evidence of the person's amenability to voluntary treatment, if any is presented, is relevant to the ultimate determination whether the person is likely to engage in sexually violent predatory crimes if released from custody." (Roberge, at p. 988, fn. 2.)

In connection with a recommitment hearing, "each recommitment requires petitioner independently prove that the defendant has a currently diagnosed mental disorder making him or her a danger. The task is not simply to judge changes in the defendant's mental state." (People v. Munoz (2005) 129 Cal.App.4th 421, 430 (Munoz).)

II. Evidence of Currently Diagnosed Mental Disorder

Whitlock challenges the court's order determining him to be an SVP on several grounds. He first contends that the psychological evaluations were not conducted close in time to his commitment and are too old to be probative on the issue of his current mental state; that the reports themselves are based on older records, and therefore they are irrelevant to the determination of whether he had a currently diagnosed mental disorder. He points out Dr. MacSpeiden's and Dr. Zinik's evaluations were conducted in April 2004, and his trial took place a year later in April 2005. Whitlock further contends the evaluations focused not on his present mental state, but on whether he could still be characterized as an SVP; that they improperly suggested that the issue was whether anything had changed since his 2002 SVP commitment. Finally, Whitlock contends he was prejudiced by the court's reliance on the April 2004 evaluations because he was not given an opportunity to participate in them, and he was denied his "right" to have them audiotaped. He maintains that but for these errors, it is reasonably probable the court would have returned a finding more favorable to him.

Preliminarily, we question whether Whitlock has the right to raise each of these arguments on this appeal. Before commencement of the bench trial on the matter, Whitlock's counsel confirmed Whitlock had agreed to submit on the People's evaluators, and "any stated objections to any admitted evidence." However, counsel did not thereafter object to admission of either psychological evaluation on grounds they were irrelevant or too stale to meet the standards under the SVPA. His arguments were only that the standard of law to be used – the quality of the mental disorder and prediction of future dangerousness – did not comport with the Fifth and Fourteenth Amendments, and also that there was no overt act that precipitated Whitlock's condition in violation of the Fourth and Fourteenth Amendments. Whitlock nevertheless argues the record shows the evaluations were performed "over [his] objection" because he refused to be evaluated unless the interviews were audiotaped for "legal reasons." This does not meet the applicable standard for preserving appellate error in the admission of evidence because the purported objection (1) was not made before the trial court contemporaneously with the proffer of evidence and (2) it was not sufficiently specific. (Evid. Code, § 353, subd. (a) [judgment will not be reversed by reason of erroneous admission of evidence unless counsel makes a timely objection and states the specific ground for the objection, or moves to strike the objectionable testimony]; People v. Carrillo (2004) 119 Cal.App.4th 94, 101.) On this record, we hold Whitlock forfeited his asserted challenges to the court's admission of the psychologists' reports on the issue of his status as an SVP.

Proceeding to the merits in any event, we reject Whitlock's contentions. To the extent Whitlock argues he was prejudiced by the lack of audiotaped interviews with Dr. MacSpeiden or Dr. Zinik, he has not explained how audiotaped interviews might have resulted in an outcome more favorable to him, i.e., that he might have said something more favorable to his position had he participated in recorded interviews, or that the psychologists would have reached different conclusions. He has not met his burden to demonstrate prejudice as a result of any error. (People v. Watson (1956) 46 Cal.2d 818, 836; Munoz, supra, 129 Cal.App.4th at p. 432 [applying Watson standard to evidentiary error at SVP proceeding].)^[3]

Although he challenges the trial court's consideration of the experts' evaluations on grounds of relevancy, Whitlock's argument in effect is that the evidence presented by the People is not sufficient to support his recommitment. "When a defendant challenges the sufficiency of the evidence to support a finding that he is an SVP, 'this court must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. [Citation.] To be substantial, the evidence must be " 'of ponderable legal significance . . . reasonable in nature, credible and of solid value.' " [Citation.]' [Citation.] '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. Sumahit (2005)128 Cal.App.4th 347, 352 (Sumahit).)

The same claims made by Whitlock – that the People's evidence does not show he currently suffers a diagnosed mental disorder that renders him unable to control his volition to commit sexually violent offenses – were rejected by the court in Sumahit, supra, 128 Cal.App.4th 347. The Sumahit court's analysis applies equally to the record and claims made by Whitlock in this case. Importantly, both experts in this case gave their current diagnoses of Whitlock as suffering from pedophilia of the nonexclusive type. Here, as in Sumahit, "[b]oth experts reviewed commitment evaluations and hospital records including notes by staff, psychologist notes, probation reports and court records. Each doctor compiled a complete criminal and social history for [Whitlock] and applied the Static-99 test which utilizes 10 factors to assess the risk that sex offenders will commit new crimes upon release from prison." (Sumahit, at p. 353.) In Whitlock's case, the result was that he fell within the high risk range. As in Sumahit, both Dr. MacSpeiden and Dr. Zinik "also cited other factors to support their opinions, including [Whitlock's] current untreated alcohol abuse problem, his current refusal to undergo treatment for his pedophilia, and his poor performance under supervision." (Ibid.) On that basis, the Sumahit court rejected the defendant's assertion that the conclusions drawn by the state's experts were solely predicated on prior sex crimes. (Ibid.) For the same reasons, we reject Whitlock's arguments that the expert's evaluations were outdated and not based on his current mental condition, and that the court erred in considering them.

The Sumahit court also rejected the defendant's contention that a determination that he is an SVP requires that he engage in overt manifestations of sexually predatory behavior: "The fact that defendant has not misbehaved in a strictly controlled hospital environment does not prove he no longer suffers from a mental disorder that poses a danger to others. Defendant has an abnormal attraction to . . . children. Because he currently lacks access to children, his lack of outward signs of sexual deviance is not dispositive on whether he is likely to re-offend if released into society at large. Such an assessment must include consideration of his past behavior, his attitude toward treatment and other risk factors applicable to the facts of his case. [Citation.] This was precisely the methodology followed by the prosecution's experts." (Sumahit, supra, 128 Cal.App.4th at p. 353, citing People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 929.) Dr. MacSpeiden and Dr. Zinik likewise followed this methodology.

Further, like the Sumahit court, we reject Whitlock's arguments on grounds he "cannot bar the state from examining his current mental condition and preserve a claim on appeal that there was insufficient evidence of his current dangerous propensities to support an SVP finding." (Sumahit, supra, 128 Cal.App.4th at p. 354, fn. 3.) "The law has a strong interest in seeing to it that litigants do not manipulate the system, especially where, to hold otherwise would permit them to ' "trifle with the courts." ' [Citation.] . . . A sex offender cannot deny the state access to the workings of his mind and then claim a lack of proof that he has a 'current' psychological disorder. Because he refused to be interviewed by the state's experts, who could have formed an opinion as to his present dangerousness, defendant has forfeited the claim that the state did not prove that he was currently dangerous." (Id. at p. 353.)^[4] Here, Whitlock further challenges the evidence on grounds his trial did not take place until over one year after the psychologists issued their reports. However, Whitlock has not cited to anything indicating that the delay took place over his objection. To the contrary, the record shows Whitlock was fully aware of and acquiesced in the delay: in July 2004, Whitlock waived the statutory time for trial, thereafter waived time for his probable cause hearing, and in February 2005 moved to continue the trial on the People's petition to April 2005.

Finally, we agree with Sumahit that Whitlock's refusal to undergo treatment is "potent evidence he is not prepared to control his untreated dangerousness by voluntary means." (Sumahit, supra, 128 Cal.App.4th at p. 354.) Sumahit explained: "In enacting the SVPA '[t]he Legislature declared the need to confine and treat a "small but extremely dangerous group of sexually violent predators," already incarcerated, who "are not safe to be at large and if released [at the conclusion of their prison terms] represent a danger to the health and safety of others in that they are likely to engage in acts of sexual

violence." ' [Citation.] [¶] The availability of treatment is at the heart of the SVPA. [Citation.] 'Through passage of the SVPA, California is one of several states to hospitalize or otherwise attempt to treat troubled sexual predators.' [Citation.] Accordingly, one of the key factors which must be weighed by the evaluators in determining whether a sexual offender should be kept in medical confinement is 'the person's progress, if any, in any mandatory SVPA treatment program he or she has already undergone; [and] the person's expressed intent, if any, to seek out and submit to any necessary treatment, . . .' [Citation.] A patient's refusal to cooperate in any phase of treatment may therefore support a finding that he 'is not prepared to control his untreated dangerousness by voluntary means if released unconditionally to the community.' " (Sumahit, at pp. 354-355, citing People v. Buffington (1999) 74 Cal.App.4th 1149, 1163, Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143 & Ghilotti, supra, 27 Cal.4th at p. 929.) Whitlock's refusal to accept treatment, combined with Dr. MacSpeiden's and Dr. Zinik's diagnoses at the time of their evaluations that he presently suffers from a sexual disorder affecting his volitional capacity, are sufficient to support the court's finding, implicit in its determination that Whitlock is and remains an SVP, that Whitlock will present a substantial danger of committing similar new crimes if released to the community. (Sumahit, supra, 128 Cal.App.4th at p. 355.)

The psychologists' evaluations did not merely judge changes (or the lack thereof) in Whitlock's mental state, and in that respect they are unlike the evidence and argument offered by the petitioner in Munoz. In that case, the prosecutor emphasized that the defendant had not challenged prior findings that he was an SVP and there had been no change in the defendant during his two years at the state hospital. (Munoz, supra, 129 Cal.App.4th at pp. 427-428.) We held these arguments, combined with the manner in which the prosecutor questioned witnesses and the court's admission of evidence of the defendant's prior state hospital commitments, suggested to the jury that its task was to compare the defendant's present mental status with earlier findings that he was an SVP. (Id. at p. 432.) We concluded that in view of contrary evidence from two defense psychologists that the defendant did not suffer from a mental disorder such as pedophilia, it was reasonably probable that but for these errors a finding more favorable to the defendant might have been returned. (Ibid.) Whitlock submitted no such contradictory evidence here, and we are persuaded by our review of the record that the court did not improperly decide Whitlock's SVP status based on a mere absence of change in his mental condition.

III. Confrontation Clause

Whitlock contends the court's reliance on statements within the psychological evaluations and police reports affected his constitutional right to confront witnesses against him under Crawford v. Washington (2004) 541 U.S. 36. Pointing out that the psychological evaluations of Dr. MacSpeiden and Dr. Zinik contain opinions based on testimonial statements of third parties, Whitlock maintains Evidence Code section 804, which permits experts to rely on opinions and statements of others, is unconstitutional under Crawford. He also challenges case law rejecting Crawford's application to SVP proceedings, asserting Crawford should apply to this proceeding because his liberty is at stake.

We reject these contentions. First, they are barred on procedural grounds. Whitlock forfeited his right to raise them on appeal by failing to raise a confrontation clause objection at his trial. " 'No procedural principal is more familiar to this Court than that a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' " (U. S. v. Olano (1993) 507 U.S. 725, 731; People v. Partida (2005) 37 Cal.4th 428, 433-434 [requirement for a specific and timely objection is necessary in criminal cases because a contrary rule would deprive the People of the opportunity to cure the defect at trial and would permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal]; People v. Burgener (2003) 29 Cal.4th 833, 869 [defendant waives constitutional claims, including federal confrontation clause violation, by failing to articulate them to the trial court]; see also People v. Mitchell (2005) 131 Cal.App.4th 1210, 1220, fn. 18 (Mitchell).)

Whitlock acknowledges that he did not raise an objection on confrontation clause or Crawford grounds, but argues the matter is nevertheless reviewable for "plain error" because it affects his constitutional rights. In part, he cites the Ninth Circuit's opinion in U.S. v. Huber (9th Cir. 1985) 772 F.2d 585, 588 and Mitchell, supra, 131 Cal.App.4th 1210. We are not persuaded. Whitlock has not cited to any published decision of a California appellate court that has applied the federal "plain error" doctrine to state court appeals, and we are not bound by the Ninth Circuit's application of that doctrine to a defendant's claim of a Crawford violation based on admission of a coconspirator's statement. (U.S. v. Huber, 772 F.2d at p. 588 [observing a split of Ninth Circuit authority on whether Crawford claim is cognizable on appeal absent a proper objection]; see People v. Bradford (1997) 15 Cal.4th 1229, 1292.)^[5] Indeed, the California Supreme Court has declined to adopt a rule of plain error review in state capital cases to "reach the merits of otherwise forfeited or waived claims of error." (People v. Benavides (2005) 35 Cal.4th 69, 115.) We decline to do so under these circumstances.

Nor does Mitchell assist Whitlock. In Mitchell, the court in fact held the defendant's claim of Crawford error was forfeited for his failure to timely assert the right. (Mitchell, supra, 131 Cal.App.4th at p. 1220, fn. 18.) It nevertheless stated its decision did not need to depend on that technical flaw; that the challenged testimony was not subject to Crawford analysis at all in that it was subject to cross-examination and was not offered to establish the truth of the matters at issue. (Mitchell, at pp. 1224-1225.) Mitchell does not stand for the proposition that a defendant's failure to object on confrontation clause grounds is of no consequence, or that such a claim is reviewable for plain error.

Even if Whitlock had not forfeited his claims of Crawford error by failing to raise them in the trial court, we would reject them on the merits. "Crawford holds that, under the Sixth Amendment right of confrontation, 'testimonial' hearsay is inadmissible unless the declarant is unavailable to testify and the defendant has had an opportunity to confront and cross-examine the declarant." (Fulcher, supra, 136 Cal.App.4th 41, 55, citing Crawford, supra, 541 U.S. at p. 68.) Because SVP proceedings are civil in nature, the state and federal rights of confrontation do not apply. (See People v. Otto (2001) 26 Cal.4th 200, 214 ["There is no right to confrontation under the state and federal confrontation clause in civil proceedings, but such a right does exist under the due process clause"]; Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1174, fn. 33; Fulcher, at p. 55; People v. Angulo (2005) 129 Cal.App.4th 1349, 1367; People v. Whitney (2005) 129 Cal.App.4th 1287, 1299; People v. Reynolds (2006) 139 Cal.App.4th 111.) Citing broad language found in Application of Gault (1967) 387 U.S. 1 (Gault), Whitlock challenges this proposition, maintaining that in Gault the court recognized that the right of confrontation applies in civil proceedings where a person's liberty is at stake. But the United States Supreme Court plainly repudiated such a far-reaching interpretation of Gault in the context of Illinois's Sexually Dangerous Persons Act in Allen v. Illinois (1986) 478 U.S. 364, 372: "Gault's sweeping statement . . . is plainly not good law. . . . [I]nvoluntary commitment does not itself trigger the entire range of criminal procedural protections." We are not persuaded by Whitlock's reliance on Gault to disregard California Supreme Court and other California appellate authority to the contrary in the SVPA context.

Further, Crawford does not apply where, as here, Whitlock had the opportunity to conduct discovery under the Civil Discovery Act and cross-examine the expert psychologists. (See Fulcher, supra, 136 Cal.App.4th at p. 56; People v. Angulo, supra, 129 Cal.App.4th at p. 1368.) There is nothing in the record to suggest Whitlock could not have undertaken these efforts through his counsel, questioned the experts at trial or testified himself; instead he chose to submit the matter on the experts' reports without objection to the assertedly hearsay nature of the statements within them. (E.g., People v. Whitney, supra, 129 Cal.App.4th at p. 1299.) On this point, Whitlock asserts it is unreasonable to suggest that he could depose the numerous underlying psychologists, social workers, probation officers and others on whose statements the experts relied, particularly when he was unsuccessful in having his psychological evaluations audiotaped. But there is nothing in the record establishing such difficulty; Whitlock makes no effort to point out whether the experts or any other witnesses were unavailable or whether his counsel had no means to conduct such discovery. In connection with his challenge to the experts' reliance on police reports, he also concedes that he admitted both of his prior offenses by guilty pleas entered in 1989 and 1994. He maintains, however, under Boykin v. Alabama (1969) 395 U.S. 238 (Boykin) and In re Tahl (1969) 1 Cal.3d 122 (Tahl), disavowed in part in Mills v. Municipal Court (1973) 10 Cal.3d 288, 306-307, fn. 16, and overruled in part in People v. Howard (1992) 1 Cal.4th 1132, 1175-1178, that the pleas were not knowing, intelligent and voluntary because he was not advised he would lose the protection offered by Crawford or of the penal consequence of being "imprisoned indefinitely pursuant to the SVP procedure." Whitlock does not provide any record support demonstrating he challenged the validity of his prior convictions on Boykin/Tahl grounds in the trial court, and we conclude he has forfeited the right to raise such a challenge on appeal.

Finally, we reject Whitlock's assertion that Crawford renders Evidence Code section 804 unconstitutional. He concedes that Evidence Code section 801 permits experts to testify as to their opinions on relevant matters and may relate the information and sources on which they rely in forming those opinions, including sources that include hearsay. (Evid. Code, § 801, subd. (b);^[6] People v. Gardeley (1996) 14 Cal.4th 605, 618-619; Fulcher, supra, 136 Cal.App.4th at p. 56.) However, he argues that "[d]ispensing with confrontation rights because the 'matter made known to [an expert]' is reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Whitlock is incorrect. In the expert context, confrontation is not dispensed with because the testifying expert is always subject to cross-examination. As the Fourth District, Division Two Court of Appeal explained in People v. Thomas (2005) 130 Cal.App.4th 1202, 1210: "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. Crawford itself states that the confrontation clause 'does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (See also Fulcher, supra, 136 Cal.App.4th at pp. 56-57.) Under the circumstances, there was no Sixth Amendment violation based on the psychologists' reliance on police reports or other persons' underlying statements and opinions.

DISPOSITION

The order is affirmed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.

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^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] The history of Whitlock's underlying prior offenses is set forth in our prior opinion on this matter, People v. Whitlock (2003) 113 Cal.App.4th 456, 459-460.

^[3] Whitlock relatedly complains that he "did not have an appointed attorney until the [People's] petition was filed in June of 2004." The sole cited record reference to this assertion, however, is the face page of the People's petition, which indicates it was filed in June of 2004. Whitlock's assertion is simply without evidentiary support.

^[4] In Sumahit, the court observed that the defendant fully cooperated with his own psychologist, while denying the People's doctors the opportunity to interview him. (Sumahit, supra, 128 Cal.App.4th at p. 351, fn. 2.)

^[5] Under the Federal Rules of Criminal Procedure (18 U.S.C. § 52(b)), a plain error argument may be raised without an objection at trial if it affects a defendant's substantial rights. (U.S. v. Young (1985) 470 U.S. 1, 15.) However, federal courts limit the application of the plain error doctrine to those rare cases in which the alleged errors seriously affect the fairness, integrity or public reputation of judicial proceedings. (Ibid.) We are not persuaded either that the federal plain error doctrine applies to allow review in state criminal cases or, if it does, that Whitlock has met his appellate burden to show that the purported error in this case seriously affected the fairness, integrity, or public reputation of judicial proceedings. (U.S. v. Young, supra, at p. 15.)

^[6] Evidence Code section 801 provides in part: "If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: . . . Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." (Evid. Code, § 801, subd. (b).)