PEOPLE v. HATFIELD

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Court of Appeal, First District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Verle HATFIELD, Defendant and Appellant.

No. A077239.

Decided: December 04, 1998

First DistrictAppellate ProjectIndependent Case SystemPaul Bernstein, Los Angeles, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Joan Killeen, Supervising Deputy Attorney General, Frances Marie Dogan, Deputy Attorney General for Plaintiff and Respondent.

Following a jury trial, appellant was declared a sexually violent predator (SVP) within the meaning of Welfare and Institutions Code section 6600,1 and committed to Atascadero State Hospital for two years.   In this appeal, he challenges the constitutionality of his commitment, the admissibility and sufficiency of the evidence presented, and the propriety of the instructions given by the trial court.   We find no flaws in the statutory scheme, the instructions given by the court, or the evidence presented, and affirm the judgment.

STATEMENT OF FACTS

At trial, the prosecution offered the testimony of two experts to establish that appellant falls within the definition of an SVP pursuant to section 6600.2  Dr. Amy Phenix, a licensed clinical psychologist for the Department of Mental Health at the California Men's Colony at San Luis Obispo, testified that she interviewed appellant, and reviewed his psychiatric history along with his Department of Corrections records “to ascertain if he met the criteria as a sexually violent predator.”   She diagnosed appellant “with an axis one mental disorder of pedophilia, sexually attracted to females, non-exclusive type, and an axis two disorder, antisocial personality disorder.”   Her diagnosis of appellant was derived from the Diagnostic Statistical Manual of Mental Disorder, Fourth Edition, or “DSM 4,” guidelines that distinguish and categorize “a broad spectrum of mental disorders.”   The DSM 4 definition of pedophilia requires “recurrent, intense sexually arousing fantasies, sexual urges or behaviors involving sexual activity with prepubescent children under the age of 13,” which causes impairment of the person's life.   An antisocial personality disorder indicates “a pervasive disregard for and a violation of the rights of others,” and like pedophilia fits within the definition of “a diagnosed mental disorder” under the SVP Act.   The classification of axis one is a “major mental disorder,” whereas axis two is a “personality disorder” of “long term, enduring styles of living that individuals have.”   Dr. Phenix further concluded that due to his mental disorders appellant is likely to reoffend with sexually violent behavior in the future.

Dr. Phenix recounted her interview with appellant and review of his records.   He disclosed an “early history of incorrigible behavior,” including truancy and expulsion from school beginning at age nine, running away from home, subsequent temporary placement in foster homes, and a juvenile history of grand theft auto in 1964.   In 1968, at age 20, appellant joined a carnival and for part of the next three years “traveled about” California.   When he returned home from his work with the carnival he lived with an aunt and uncle, and while there frequently engaged in sexual “intercourse with a 10-year-old cousin that was living in the house.”   Appellant described his sexual activities with his younger cousin to Dr. Phenix as “doing anything sexually that they wanted to do.”

Dr. Phenix learned that appellant “had two offenses that involved [convictions for] contributing to the delinquency of a minor.”   In 1970, when appellant was 22 years old, he took care of children, one of whom was a “9-year-old female” that “would run around the house nude all the time.”   Family members discovered him “with her in his bed, apparently nude, and accused him of some type of sexual activity.”   Appellant claimed that the girl “came to his room and they were just talking.”

In October of 1972, he was found with a 12-year-old female in his car who, her father reported, was “trying to run away with” appellant.   Dr. Phenix did not have any “specific information” that sexual activity occurred in this case.   According to appellant, he had “just met” the 12-year-old girl and was merely “giving her a ride” when the police apprehended him.

In 1974, appellant was convicted for lewd and lascivious acts with a child in Boise, Idaho, an offense which the record indicated “involved substantial sexual contact with the victim in the form of penetration type sexual activity.”   Appellant met the victims, who were ages three and five, while operating a carnival “kiddie ride.”   He attempted to have intercourse with both victims, but was “unable to effect penetration.”   He then engaged in “sexual play activities” with the victims, which included writing with a pen near their genitals, and “having them write on his genitals with a pen.”   He gave a $1 bill to one child, and placed “a $5 bill in the vagina of the other child.”   Such “unusual” or “deviant” sexual behavior is routinely observed with sex offenders, testified Dr. Phenix.   While appellant was incarcerated in Idaho, his records contained an admission to a staff member “that he still had sexual attraction to children, to girls.”

After appellant served “about 10 years in the penitentiary” in Idaho, he was released and moved to California, where he suffered a conviction for contributing to the delinquency of a minor.   Subsequently, while he was living in a hotel in San Francisco, he sexually assaulted two sisters, ages four and six, one of whom “complained of pain on urination.”   Another child, age six, who was befriended by appellant in a park across the street from his hotel, reported that he “exposed his genitals to her and that he had touched her in the genital area numerous times.”

Following his conviction and imprisonment for sex offenses in California in 1986, he was found “to have quite a wide array of pornography in his cell” in 1990, including “magazines, books and cut out pictures of children,” along with “addresses of organizations that sent child pornography.”   Appellant had also written letters that he “intended to send to children from the institution,” and a “letter which described how to have sex with a child.”   When the Department of Corrections initiated an investigation into appellant's possession of child pornography, he “destroyed evidence” and was subjected to discipline for substantial violation of prison rules.

After he was released from prison on December 30, 1992, appellant committed two parole violations that also contributed to the pedophilia diagnosis.   First, after an admonishment from his parole agent in April of 1993 to avoid contact with children as specified in his parole conditions, appellant befriended two daughters of the manager of the hotel in which he lived.   He read stories to the girls, ages 4 and 6, and offered them gifts.   He then twice requested permission to take the younger girl to the library, but her mother refused.   After appellant was arrested for a parole violation, he admitted to his parole agent that he asked one of the girls to go to the library and “hoped the mother would not allow it.”

In May of 1995, a parole search of his residence uncovered “a list of Barney episodes” and a “Barney and Friends” videotape that might be used to attract children, a “computer link internet listing” of child pornography video titles, sexually explicit photographs of nude children, a book of “pornographic pedophilic fantasies” with descriptive details, “nudist paraphernalia,” and children's clothing catalogs.   Appellant told his parole agent that he found these items in the trash and intended to throw them away, or “was holding” them for friends.   His parole was subsequently revoked again.

Dr. Phenix felt that appellant exhibited “manipulative, deceitful methods” to inveigle his victims, impulsivity, “repeated lying” about the offenses, “strikingly little remorse” for the harm he has inflicted, and “lack of connection to the feelings of these victims,” all troubling clinical indicators of antisocial personality disorder and prognosticators of recidivist behavior.   Appellant's recent possession of child pornography in his prison cell and residence revealed to Dr. Phenix his “continued ․ fantasies and drives toward young children,” and suggested the likelihood he will reoffend.   His choice of young “children he finds in the community” rather than “an incest type pedophilia” makes him a higher risk to reoffend, according to clinical research and experience in the field.   Appellant's inability to “live within the rules of parole” shows his lack of “internal controls” to prevent him from reoffending.   According to Dr. Phenix, instead of removing himself from associations with children as necessary to avert the “environmental causes” of molestation, appellant seemed to seek out “children as sexual partners.”

Appellant stated in response to an inquiry by Dr. Phenix that “it would be hard for him to avoid children on parole because ․ they look at him funny” and expect him “to give them gifts.”   He also mentioned that he intended to “engage in nudist activity as a life style,” which to Dr. Phenix raised concerns with his focus “on nudism and the children in these nudist colonies.”   Appellant's lack of friends, social connections, funds, and a family or community support system, all further increase the likelihood of reoffending.

Dr. Phenix testified that appellant exhibited “typical grooming behavior” of a pedophile by befriending “younger victims” with offerings of gifts and friendship.   His “established grooming pattern” with “quite young girls” involving “some unusual sexual behavior” “seems to indicate in some studies a greater propensity to recidivate and a more severe pedophilia.”   Appellant did not reveal to Dr. Phenix that he had a significant sexual relationship with an adult partner, another indicator of pedophilia.

On cross-examination Dr. Phenix professed that her testimony was based on her interview of appellant and review of his records, along with her own clinical opinions, but not any personal knowledge of the facts.   She acknowledged that clinical opinions are less accurate than actuarial data in predicating future behavior.   A recent “state of the art” study by Carl Hanson and Monique Bussiere entitled “Predictor of Second Offender Recidivism:  A Meta Analysis” (1995) 3 (referred to at trial as the “Hanson Study”) relied upon by Dr. Phenix to support her conclusions, revealed that only 12.7 percent of child molesters reoffend within five years.   In the Hanson Study, a reoffense was defined only as a conviction of a sex offense, not convictions of lesser crimes of violence or violations of parole.   In a longer “follow up” period of 10 to 30 years, the recidivism rate reached 40 percent.   The 12.7 percent reoffense rate stated in the Hanson Study was based on a diverse population of child molesters, including both incest molesters and those whose victims are outside the family.   The reoffense rate for incest offenders has been typically lower than those with nonfamilial or “stranger victims.”

Dr. Phenix testified that she believes appellant falls within a “much higher risk category” than the population of child molesters which yielded a 12.7 percent reoffense rate in the Hanson Study, due to the early onset of offending at a relatively young age, his chronic, enduring commission of multiple sex offenses “throughout a lengthy span of time,” his more deviant sexual behavior, such as “children writing with pens on his genitals,” and his choice of very young victims.   Her “clinical determination” was that appellant was “more likely than not to reoffend.”

The People also presented the expert testimony of Dr. Jeffrey Lille, a licensed psychologist with a specialty in forensics, who reviewed appellant's medical and criminal records, then conducted a “mental status examination” of him for the purpose of a section 6600 evaluation.   Dr. Lille diagnosed appellant “with pedophilia, exclusive type,[4 ] personality disorder with antisocial traits.”   His opinion was that appellant's pedophilia fit the definition of a “mental disorder” found in section 6600.   The diagnosis of pedophilia, according to Dr. Lille, was “obvious, very apparent in this case.”   He noted that appellant's pedophilia had endured for “30 years or more,” and without intensive treatment was very unlikely to abate.   He also focused on appellant's multiple convictions for sexual molestation of children, possession of child pornography in prison, and his recent parole violations for improper contact with children and possession of child pornography, in making the diagnosis of chronic, continuing pedophilia.

Dr. Lille also offered the opinion that “there is a high probability or high risk” appellant “will reoffend in a sexually violent predatory manner.”   The combination of antisocial personality disorder, manifested in irresponsibility, impulsivity, and lack of remorse or empathy for victims, and continuing pedophilic urges and pattern of offenses, renders appellant particularly likely to reoffend, according to Dr. Lille.   Other high risk factors cited by Dr. Lille in support of his conclusion that appellant is likely to engage in further sexually violent criminal behavior are:  the highly deviant behavior;  the extreme youth of his victims;  the fact that “the victims are strangers” rather than family members;  the lack of any sexual relationship with an adult;  the pattern and history of multiple offenses;  the young age at which appellant began his pedophilic behavior;  appellant's statement that he continued to be attracted to a life style of pornography;  his admission of sexual fantasies for children;  and his apparent belief “that what he is doing is okay,” and only society “seems to have gotten in the way of his behavior.”

Like Dr. Phenix, Dr. Lille based his conclusions on both his “clinical impressions” and reference to research such as the Hanson Study.   He expressed the belief that appellant has no “volitional capacity” to “stop acting the way he does,” and without “substantial treatment” would fail to do so.   Of the 75 to 80 individuals Dr. Lille has evaluated in the SVP program, he testified that appellant is “certainly at the higher end of risk factors of all those I have seen.”

Appellant testified in his defense that during his adolescence in Oregon, he briefly ran away from home four or five times following arguments with his parents, and was expelled from school for a year for damage to a book that slipped off his desk.   He was convicted of grand theft auto and placed in a reform school at 15 years old when he “got caught” “going for a joy ride” with an older friend.   He then left home at 18 years old and briefly moved into the home of a sister and brother-in-law.   From there, he “took off” due to emotional and other problems and “hitch-hiked” to California, Texas and Arizona.   In 1968, just before he turned 20, appellant began working for carnivals, and did so thereafter for more than seven years.

Appellant admitted that he had “sexual relations” with two of his cousins beginning at age 12 and continuing until he was 23.   He testified that he regularly engaged in mutually consensual “sexual activity” with his cousin Debbie when she was 11 years old while he stayed at the home of his aunt and uncle during the winter months away from carnival work.

He referred to his convictions for contributing to the delinquency of a minor in 1970 and again in 1972, but professed that neither offense involved sexual contact with the child.   He entered a guilty plea to one count of lewd and lascivious conduct with a child in Boise, Idaho, in 1974, but had no memory of the incident due to a beating inflicted on him.   His plea agreement called for “5 years' probation,” but he left for Arizona and failed to appear for his sentencing hearing.   When he later returned to Idaho, he was sentenced to 15 years in prison.

Appellant admitted that while in prison in Idaho in May of 1976, to earn money he composed a letter recounting his “sexual history” with children in response to a solicitation from “Mr. Philpot” in the Berkeley Barb. He and a friend “made up some stuff” based upon appellant's experiences with his cousins and information from “the paperwork” in his “cases in Idaho.”   Most of the letter was fabrication.   The only true accounts in it were that at 19 years old he unsuccessfully attempted to have sexual intercourse with his nine-year-old cousin Debbie at her suggestion, and in 1970, he slept in the same bed with a nine-year-old while staying at her home.   The latter incident was the basis for his conviction of contributing to the delinquency of a minor in 1970.   He never sent the letter to Mr. Philpot.

In 1985, six weeks after his release from prison in Idaho, appellant moved to the Coronado Hotel in San Francisco, where he was arrested and convicted in 1986 for sexual offenses against three children.   One of the children was the five-year-old daughter of his girlfriend, and the other two were the daughters of a friend, Susan Haney, whom he met at Bodecker Park.   He denied that he molested any of the children, although he admitted he was found in a bathtub with his girlfriend's daughters after they “crowded in with” him, and had taken photographs of them naked while his girlfriend was present.   Appellant testified that Haney discovered one of her daughters sitting on his lap, but insisted he had no sexual contact with the girl.   He also bought clothing for Haney's daughters and was present when they changed into their shorts in his residence, but again denied any sexual contact with them.   The night before he was arrested, appellant claimed he was robbed by Haney's boyfriend.   Appellant did not personally accept the guilty verdicts for the San Francisco offenses, which he considered unwarranted.

To explain his disciplinary violations for possession of pornography and destruction of evidence while in prison in 1990, appellant testified that a prior cellmate left “nudist publications and books” with him two years before, and other pornographic material in binders had been placed in his cell by another unknown inmate the day of the search during an ongoing prison investigation.   He was found guilty of destruction of evidence, but not possession of child pornography.   According to appellant, the only pornography he ever had in his possession was “adult pornography.”   Appellant admitted that a letter entitled “How to Have Sex with a Child” was also discovered in his cell.   He copied the letter from a book in the prison library for another inmate, who was then transferred before appellant “could give it to him.”

As to the parole violation in 1993 for contact with a child, appellant testified that when he moved back to the Coronado Hotel in San Francisco after his release from prison, he noticed that the manager's daughters frequently played near his room.   To “stay on the good side of the manager,” appellant talked to the children and even bought them birthday presents.   To avoid a parole violation, he advised his parole agent that he had contact with the children.   Although appellant's parole agent told him to stay away from the children, and despite the threat of a parole violation, appellant invited the four-year-old girl to the library to interest her in reading.   The child's mother said “no, without giving a reason.”   Appellant was pleased with the mother's refusal because he “wouldn't have to worry about being alone” with the child in the “nooks and crannies” of the library.

His parole violation in 1995 for possession of child pornography occurred when he gathered items from the hotel garbage for resale during his maintenance work.   He typically examined the items in his room, kept those he could sell, and stashed the rest temporarily in a basement storage closet until he “was ready to throw them away.”   The night his residence was searched by his parole agent, he intended to discard the pornographic material and other items.

Appellant maintained that when he was younger he had “thoughts concerning” his cousins, but he no longer has any “sexual interest” in children.   His “sexual fantasies about children” ceased in 1976.   Appellant agreed that “just in case,” he should not be “around children,” but only “because of the legal implication,” not for fear of any sexual interest in them.

DISCUSSION

Appellant argues that the prosecution failed to adduce competent evidence of his prior conviction of a “sexually violent offense against two or more victims” under section 6600.   He claims that inadequate evidence of “the predicate offenses” was presented “to support even a finding of probable cause.”   Then, his argument proceeds, at trial the court misunderstood the “ruling at the probable cause hearing,” which was not “on the merits,” and improperly overruled defense objections to the competence and sufficiency of the evidence offered to establish the prior convictions.   Appellant maintains that “there was no evidence, competent or otherwise, to satisfy the predicate offenses element.   The court thus erred in finding probable cause and in failing to dismiss upon defense counsel's motion.”   Further, he claims that the stipulation offered at trial as to the prior convictions fails to satisfy the elements of section 6600 for two reasons:  First, it was based upon the erroneous denial of the motion to dismiss the prior convictions;  and second, the stipulation reserved objections to the sufficiency of the evidence of the prior convictions.   Absent a valid stipulation, he finally postulates, insufficient evidence of qualifying prior convictions was presented at trial.

I. The Finding at the Probable Cause Hearing that Appellant Suffered Qualifying Prior Convictions.

We first confront appellant's challenge to the finding of probable cause to believe that the elements of the prior convictions were established.   He also makes cursory reference to the inadequacy of the allegations of the petition in stating “what the predicate offenses were or how they met the statutory definition of sexually violent offenses.”

 Appellant's complaint with the allegations of the petition is untimely.   His failure to demur to the pleading waives his right to complain of defects in the petition on appeal.  (In re Parker (1998) 60 Cal.App.4th 1453, 1468, fn. 15, 71 Cal.Rptr.2d 167.)   Moreover, any flaws or irregularities in the probable cause proceedings do not subject the judgment to reversal unless appellant shows that he was thereby deprived of a fair trial or otherwise suffered prejudice as a result of the error.  (See People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529, 165 Cal.Rptr. 851, 612 P.2d 941;  People v. Maugh (1969) 1 Cal.App.3d 856, 862-863, 82 Cal.Rptr. 147.) 5  Appellant made a motion to dismiss following the determination that probable cause had been established-which we view as tantamount to a Penal Code section 995 motion following a probable cause finding by a magistrate.   Thus, on appeal we review rulings on the admissibility and sufficiency of the evidence made by the court under an abuse of discretion standard, without reweighing the evidence and drawing every legitimate inference in favor of the court's findings.  (People v. Daily (1996) 49 Cal.App.4th 543, 549, 56 Cal.Rptr.2d 787;  People v. Superior Court (Jurado ) (1992) 4 Cal.App.4th 1217, 1226, 6 Cal.Rptr.2d 242;  Montez v. Superior Court (1992) 4 Cal.App.4th 577, 583, 5 Cal.Rptr.2d 723.)   And, even upon erroneous denial of the motion to dismiss, reversal of the judgment is justified only if appellant demonstrates prejudice at trial flowing from the purportedly inadequate evidentiary showing at the probable cause hearing.   (People v. Crittenden (1994) 9 Cal.4th 83, 136-137, 36 Cal.Rptr.2d 474, 885 P.2d 887;  People v. Alcala (1984) 36 Cal.3d 604, 627-628, 205 Cal.Rptr. 775, 685 P.2d 1126.)

 We conclude that the court made the proper findings at the probable cause hearing.   Section 6602 provides in part:  “A judge of the superior court shall review the petition and shall determine whether there is probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release.”   We disagree with appellant's position that the court failed to rule “on the merits,” and “did not specifically find the predicate offenses proven.”   The court found, as mandated by the statute, “that there is evidence which satisfies the standard of probable cause to believe that the defendant ․ is likely to engage in sexually violent predatory criminal behavior upon his release from state prison․”  At the probable cause hearing, the issue of whether the prior convictions were committed with the requisite fear, force or duress to constitute sexually violent offenses within the meaning of section 6600 was also disputed.   Although the court expressed ignorance of “what happened in those cases,” referring to the proceedings that resulted in the prior convictions, the specific finding was made that the evidence was “enough to warrant a probable cause determination at the very least that these young people, these victims, ․ he went to state prison for these offenses, that they were engaged in behavior that was a result of consequences or factors which normally three-year-olds and five-year-olds don't participate in.”   Given the issue presented, we think the court thus determined that the prior convictions satisfied the statutory requirement of a “sexually violent offense” against two or more victims.   For purposes of the probable cause hearing, the court's finding was “on the merits.”

II. The Evidence of the Prior Convictions Adduced at the Probable Cause Hearing.

 The case proceeded to jury trial, where appellant moved unsuccessfully to dismiss for lack of evidence of force or fear associated with the prior convictions.   Appellant maintains that the court's “refusal to dismiss at jury trial” due to “inadequate evidence” of the prior convictions presented at the probable cause hearing was “reversible error.”

Upon our review of the record, we conclude that at the probable cause hearing adequate evidence was presented of a qualifying “sexually violent offense,” which is defined in subdivision (b) of section 6600 as “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 ․ 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).) 6  We think the record supports the court's finding of at least probable cause to believe that the prior convictions included acts of force, fear, duress or substantial sexual conduct upon the very young victims as defined in governing statutes.

 Appellant's contention that the expert evaluations by which the qualifying prior convictions were proved at the probable cause hearing constituted inadmissible hearsay evidence for the purpose of establishing the truth of the matter asserted, is defeated by the language of section 6600, subdivision (a), which states in part:  “The existence of any prior convictions may be shown with documentary evidence.   The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Health.”  Section 6600 thus provides a specific exception to the prohibition against admission of hearsay evidence to prove qualifying convictions in SVP proceedings.  (See Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1076-1077, 2 Cal.Rptr.2d 160, 820 P.2d 262.)   The prosecution was permitted to establish the nature of the prior convictions with hearsay information contained in the reports.  (See In re Parker, supra, 60 Cal.App.4th at pp. 1469-1470, 71 Cal.Rptr.2d 167.)

III. Appellant's Right to Confrontation.

 We further conclude that appellant was not denied his right to cross-examine and “confront his accusers” by the admission of hearsay evidence to establish the qualifications of the prior convictions under section 6600.   “The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’   The right of confrontation ․ ‘means more than being allowed to confront the witness physically.’  (Davis v. Alaska [ (1974) ] 415 U.S. [308,] 315, 94 S.Ct. [1105,] 1110, 39 L.Ed.2d 347.)   Indeed ‘ “[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” ’  (Id., at 315-316, 94 S.Ct. at 1110 (quoting 5 J. Wigmore, Evidence, § 1395, p. 123 (3d ed.1940)), emphasis in original.)”  (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678 [106 S.Ct. 1431, 1435, 89 L.Ed.2d 674].)  “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.”  (Davis v. Alaska (1974) 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347.)

 Confrontation clause questions arise where restrictions imposed by the trial court effectively “ ‘emasculate the right of cross-examination itself.’ ”  (Delaware v. Fensterer (1985) 474 U.S. 15, 19 [106 S.Ct. 292, 294, 88 L.Ed.2d 15] quoting from Smith v. Illinois (1968) 390 U.S. 129, 131, 88 S.Ct. 748, 19 L.Ed.2d 956.)   The right of confrontation is not absolute, however.  (People v. Stritzinger (1983) 34 Cal.3d 505, 515, 194 Cal.Rptr. 431, 668 P.2d 738;  People v. Harris (1985) 165 Cal.App.3d 1246, 1257, 212 Cal.Rptr. 216.)   The trial court retains considerable discretion to regulate and impose reasonable limits on cross-examination in the interests of orderly procedure, and preventing harassment, prejudice or confusion of the issues.  (Delaware v. Van Arsdall, supra, 475 U.S. at p. 679, 106 S.Ct. 1431;  People v. Babbitt (1988) 45 Cal.3d 660, 683, 248 Cal.Rptr. 69, 755 P.2d 253;  People v. Sims (1970) 8 Cal.App.3d 599, 602, 88 Cal.Rptr. 225.)   “[T]he Supreme Court has recognized that there are competing interests that justify dispensing with confrontation at trial in certain circumstances and permitting the introduction of hearsay evidence.  ‘Significantly, every jurisdiction has a strong interest in effective law enforcement, and in the development and precise formulation of the rules of evidence applicable in criminal proceedings.’  (Ohio v. Roberts [ (1980) ] 448 U.S. [56,] 64 [100 S.Ct. 2531, 2538, 65 L.Ed.2d 597].)”  (People v. Greenberger (1997) 58 Cal.App.4th 298, 326, 68 Cal.Rptr.2d 61.)

 “ ‘[A] certain threshold level of cross-examination is constitutionally required, and in such cases the discretion of the trial judge is obviously circumscribed.’  [Citation.]”  (In re Anthony P. (1985) 167 Cal.App.3d 502, 513, 213 Cal.Rptr. 424.)   In all other cases, the courts retain a traditional and intrinsic authority to control admission of evidence in the interests of orderly procedure and the avoidance of prejudice.  (People v. Cooper (1991) 53 Cal.3d 771, 817, 281 Cal.Rptr. 90, 809 P.2d 865;  People v. Hall (1986) 41 Cal.3d 826, 834, 226 Cal.Rptr. 112, 718 P.2d 99;  People v. Castro (1985) 38 Cal.3d 301, 306-307, 211 Cal.Rptr. 719, 696 P.2d 111.)  “The Confrontation Clause ‘guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’  [Citations.]”  (People v. Clair (1992) 2 Cal.4th 629, 656, fn. 3, 7 Cal.Rptr.2d 564, 828 P.2d 705. See also People v. Cooper, supra, at p. 817, 281 Cal.Rptr. 90, 809 P.2d 865.)  “ ‘There is no Sixth Amendment violation at all unless the prohibited cross-examination might reasonably have produced “a significantly different impression of [the witness's] credibility․” ’ ”  (People v. Cooper, supra, at p. 817, 281 Cal.Rptr. 90, 809 P.2d 865, quoting from People v. Belmontes (1988) 45 Cal.3d 744, 780, 248 Cal.Rptr. 126, 755 P.2d 310.)   Ordinarily, proper application of the statutory rules of evidence do not impermissibly infringe upon a defendant's due process rights.  (See People v. Lucas (1995) 12 Cal.4th 415, 464, 48 Cal.Rptr.2d 525, 907 P.2d 373;  People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103, 31 Cal.Rptr.2d 321, 875 P.2d 36;  People v. Hawthorne (1992) 4 Cal.4th 43, 58, 14 Cal.Rptr.2d 133, 841 P.2d 118.)

 The commitment of a person for treatment under the SVP Act is a civil rather than criminal proceeding.  (Kansas v. Hendricks (1997) 521 U.S. 346, ---- - ----, 117 S.Ct. 2072, 2081-2082, 2085, 138 L.Ed.2d 501 (hereafter Hendricks );  In re Parker, supra, 60 Cal.App.4th at p. 1461, 71 Cal.Rptr.2d 167.)   Both the federal and state Constitutions (U.S. Const., 6th Amend.;   Cal. Const., art.   I, § 15) confine the express right of confrontation to criminal defendants.  (In re Sade C. (1996) 13 Cal.4th 952, 992, 55 Cal.Rptr.2d 771, 920 P.2d 716;  In re Amber S. (1993) 15 Cal.App.4th 1260, 1264, 19 Cal.Rptr.2d 404.)   Parties in civil proceedings have a due process right to cross-examine and confront witnesses.  (In re Malinda S. (1990) 51 Cal.3d 368, 383, fn. 16, 272 Cal.Rptr. 787, 795 P.2d 1244;  see also In re Dolly D. (1995) 41 Cal.App.4th 440, 444, 48 Cal.Rptr.2d 691;  McLaughlin v. Superior Court (1983) 140 Cal.App.3d 473, 481-482, 189 Cal.Rptr. 479.)   To determine the nature and extent of due process protections due to a civil litigant, we consider:  (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the interest in enabling individuals to thoroughly present their side of the story, and (4) the governmental interests, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail.  (In re Malinda S., supra, at p. 383, 272 Cal.Rptr. 787, 795 P.2d 1244;  In re Jackson (1987) 43 Cal.3d 501, 510-511, 233 Cal.Rptr. 911, 731 P.2d 36;  People v. Ramirez (1979) 25 Cal.3d 260, 269, 158 Cal.Rptr. 316, 599 P.2d 622;  Coniglio v. Department of Motor Vehicles (1995) 39 Cal.App.4th 666, 682, 46 Cal.Rptr.2d 123.)

 Although the private interest of a defendant facing lengthy confinement for treatment as an SVP is great, we find no violation of appellant's due process rights in the provisions for admission of hearsay documentary evidence to prove that the prior convictions met the statutory definition of sexually violent offenses.   Appellant's rights to engage in cross-examination and presentation of evidence were not effectively emasculated.   He maintained his rights under the statutory scheme to obtain and contest the reports upon which the evaluations of experts were based, to cross-examine the experts on the basis of the information at their disposal, and to present conflicting testimony of his own.  (§ 6603.)   The statutory scheme adequately enabled him to challenge the information in the documentary evidence and present his version of the prior convictions.   We are also persuaded that the documentary evidence of the prior convictions has sufficient indicia of reliability to satisfy due process standards.   Although the underlying reliability of the witness or victim of the prior sexually violent offense may remain untested, the defendant in an SVP proceeding has the opportunity for evaluation and cross-examination of the testimony of the qualified experts.  (See Whitman v. Superior Court, supra, 54 Cal.3d at pp. 1077-1078, 2 Cal.Rptr.2d 160, 820 P.2d 262;  People v. Best (1997) 56 Cal.App.4th 41, 46, 64 Cal.Rptr.2d 809.)   Finally, we think that insistence upon proof of the nature and details of prior convictions without reliance upon reliable hearsay evidence would impose unreasonable and unnecessary burdens upon the prosecution.   Despite the hearsay nature of the evidence authorized to prove the sexually violent offense, in our view, appellant was not deprived of a substantial due process right at the probable cause hearing.  (People v. Reed (1996) 13 Cal.4th 217, 228-230, 52 Cal.Rptr.2d 106, 914 P.2d 184.)

IV. The Effect of the Stipulation.

Before appellant's motion to dismiss was denied, he entered a stipulation as to the “first elements” of the prior convictions in conjunction with his request to exclude evidence of the “underlying facts of the convictions.”   Appellant subsequently reiterated that he “stipulated to the prior convictions.”   We reject appellant's claim that the stipulation was defective either because it was based upon an erroneous, misunderstood ruling at the probable cause hearing, or a reservation of rights.   As we have observed, the finding of probable cause was “on the merits” and based upon sufficient evidence.   Contrary to appellant's protestations, nothing in the record suggests to us that at trial the court felt bound by the earlier probable cause determination.   In response to appellant's renewal of the previously overruled objection that the prior convictions did not “fit the criteria” of the statute, the trial court declared:  “That will be the ruling of this court also.”   The trial court did not adopt the prior probable cause determination as a compulsory ruling, but rather merely expressed agreement with it.

We also discern neither a limitation to the stipulation nor reservation of rights at trial to contest the elements of the prior convictions.   As we interpret the stipulation, appellant conceded that the essential elements of the prior convictions were established for purposes of section 6600.   The prosecutor was then foreclosed from adducing any evidence of the offenses, except to substantiate the evaluations of the experts, and the jury was instructed that pursuant to the stipulation the prosecution had “conclusively proven” a prior conviction “of a sexually violent offense against two or more victims with whom he had a predatory relationship.”   The record fails to support appellant's claim that he reserved the right to contest the qualifications of the prior convictions under section 6600.

 The effect of the stipulation was to bind the parties and relieve the prosecution of the burden of proof of the qualifying prior convictions at trial.  (Greatorex v. Board of Administration (1979) 91 Cal.App.3d 54, 58, 154 Cal.Rptr. 37.)   With the essential elements of the prior convictions thus established by the valid stipulation, any defect from inadequate proof of the prior convictions at the probable cause hearing cannot be deemed prejudicial to appellant.  (People v. Crittenden, supra, 9 Cal.4th at p. 137, 36 Cal.Rptr.2d 474, 885 P.2d 887.)   Accordingly, reversal for irregularities in the probable cause proceedings is unwarranted.

V.-VI **

VII. The Instruction on Mental Disorder.

 We turn to appellant's challenges to the jury instructions, the first of which is that the definition of “mental disorder” was defective for lack of reference to an “inability to control behavior.”   Appellant acknowledges that section 6600 does not define mental disorder with language that requires “inability to control” behavior.   He nevertheless claims that the trial court had the “sua sponte duty” to add such language to the definition as a requirement of substantive due process under the federal Constitution as construed in Hendricks, supra, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501.

The definition of mental disorder given to the jury followed the language of section 6600, subdivision (c):  “For purposes of this instruction, diagnosed mental disorder includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of sexually violent acts in a degree constituting the person a menace to the health and safety of others․”  The statutory definition of mental disorder in the California SVP Act, in turn, precisely tracked that of the Kansas statute examined and approved by the United States Supreme Court in Hendricks, supra, at p. ----, 117 S.Ct. at p. 2079.7

 The jury was given the statutory definition of mental disorder in the language of section 6600.  “The language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification.   If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language.”  (People v. Poggi (1988) 45 Cal.3d 306, 327, 246 Cal.Rptr. 886, 753 P.2d 1082;  see also People v. Estrada (1995) 11 Cal.4th 568, 574, 46 Cal.Rptr.2d 586, 904 P.2d 1197.)   To determine the meaning of a charge to the jury, we must consider “the way in which a reasonable juror could have interpreted the instruction.”  (Sandstrom v. Montana (1979) 442 U.S. 510, 514, 99 S.Ct. 2450, 61 L.Ed.2d 39;  see also People v. Warren (1988) 45 Cal.3d 471, 487-488, 247 Cal.Rptr. 172, 754 P.2d 218.)   The entire charge of the court must be assessed, not just isolated excerpts or a particular instruction.  (People v. Warren, supra, at p. 487, 247 Cal.Rptr. 172, 754 P.2d 218;  see also People v. Wilson (1992) 3 Cal.4th 926, 943, 13 Cal.Rptr.2d 259, 838 P.2d 1212;  People v. Crandell (1988) 46 Cal.3d 833, 874, 251 Cal.Rptr. 227, 760 P.2d 423.)

 The instruction in the language of the statute that a mental disorder is a condition “affecting the emotional or volitional capacity ” of the person “that predisposes ” him to commit sexually violent acts, correctly described for the jury the element of lack of ability to prevent future dangerous behavior.   As appellant argues, based upon a technical reading of only part of the statutory and instructional definition of “mental disorder,” the jury may have found that he suffered from a mental disorder affecting his emotional capacity alone, rather than impairment of volitional faculty.   We do not agree with appellant, however, that the instructions thereby incorrectly directed the jury to ignore the element of lack of control of behavior.   A critical additional component of the statutory and instructional definition is that the mental disorder “predisposes” the person to commit sexually violent crimes, indicating a compulsion to act.   The jury was also instructed, according to subdivision (a) of section 6600, that a sexually violent predator is a person who “has been diagnosed with a mental disorder that makes him a danger to the health and safety of others and it is likely that he will engage in sexually violent conduct, sexually violent behavior upon his release.”   In our view, the instructions, when read in their entirety, properly advised a reasonable juror of the essential element of an impairment rendering the defendant unable to curtail future dangerous behavior, as the statute requires.   Absent a request from appellant, the court had no duty to rewrite the statute and corresponding instruction sua sponte to further explain the definition of a mental disorder.  (People v. Mayfield (1997) 14 Cal.4th 668, 778, 60 Cal.Rptr.2d 1, 928 P.2d 485;  People v. Kelly (1992) 1 Cal.4th 495, 535-536, 3 Cal.Rptr.2d 677, 822 P.2d 385;  People v. Sanchez (1998) 62 Cal.App.4th 460, 470-471, 72 Cal.Rptr.2d 782.)

Nor do we find the instruction constitutionally deficient for want of a specific “inability to control” language.   The United States Supreme Court in Hendricks concluded that a Kansas statute with an indistinguishable definition of mental abnormality was in conformance with the dictates of substantive due process.  (Hendricks, supra, at p. ----, 117 S.Ct. at p. 2079.)   The court declared that when the requirement of future “dangerousness” is coupled “with the proof of some additional factor, such as a ‘mental illness' or ‘mental abnormality[,]’ ” a civil commitment scheme meets constitutional mandates.  (Hendricks, supra, at p. ----, 117 S.Ct. at p. 2080.)  “These added statutory requirements serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control.”  (Ibid.)   The court found the Kansas civil commitment statute “plainly of a kind with these other civil commitment statutes:  It requires a finding of future dangerousness, and then links that finding to the existence of a ‘mental abnormality’ or ‘personality disorder’ that makes it difficult, if not impossible, for the person to control his dangerous behavior.  [Citation.]  The precommitment requirement of a ‘mental abnormality’ or ‘personality disorder’ is consistent with the requirements of these other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.”  (Ibid;  see also People v. Superior Court (Blakely ) (1997) 60 Cal.App.4th 202, 210, 70 Cal.Rptr.2d 388.)   Finally, the court declared:  “Hendricks' diagnosis as a pedophile, which qualifies as a ‘mental abnormality’ under the Act, thus plainly suffices for due process purposes.”   (Hendricks, supra, at p. ----, 117 S.Ct. at p. 2081.)

 The essence of the due process requirement announced in Hendricks is a demonstrated, diagnosed impairment that makes the person likely to engage in dangerous sexually violent behavior in the future.   It is the prediction of future dangerousness, whether due to inability to control behavior or a compelled choice to so act, that justifies civil commitment.   (Hendricks, supra, at pp. ---- - ----, 117 S.Ct. at pp. 2080-2081.)   That the instructions used the terms lack of “volitional capacity” and predisposition to commit future criminal acts, rather than specific “inability to control” language, does not constitute a denial of due process.   The court has “never required State legislatures to adopt any particular nomenclature in drafting civil commitment statutes.”  (Hendricks, supra, at p. ----, 117 S.Ct. at p. 2081.)   The definition stated in section 6600, subdivision (c) and the instructions properly set forth criteria comparable to the civil commitment statutes upheld by the United States Supreme Court.  (Ibid.)  The instructions given by the trial court adequately conveyed to the jury the fundamental, indispensable standard of future dangerousness caused by compulsion associated with a mental disorder.

VIII. The Instructions on the Element of Likely Future Criminal Conduct and Reasonable Doubt.

 Next, appellant complains that the definition of “sexually violent predator” given by the court, again in the terms of the statute, “left the jury with the erroneous impression that the burden of proof was less than beyond a reasonable doubt.”   He focuses upon language in the instruction and section 6600, subdivision (a) that a sexually violent predator is a person who, due to a mental disorder, is “likely to engage in sexually violent criminal behavior.”   Appellant argues that use of the “word ‘likely’ ” to describe the predictive measure of potential “future criminal conduct,” when combined with the instruction on reasonable doubt in accordance with section 6604,8 resulted in “irreparable confusion” of the jury.   He submits:  “The wording of the statute combined with the manner in which this court instructed the jury left the jury with the erroneous impression that the burden of proof was less than beyond a reasonable doubt, and more like a preponderance of the evidence.”

  We do not perceive in the statute or instructions any ambiguity or impermissible diminution in the burden of proof. We must view the instructions in light of the entire record to determine whether there is a reasonable likelihood that the jury understood those instructions as permitting a conviction on a standard less than beyond a reasonable doubt. In making that determination, we must consider the entire record of the trial including the other instructions provided to the jury and the arguments of counsel. (Estelle v. McGuire (1991) 502 U.S. 62, 72, 112 S.Ct. 475, 482, 116 L.Ed.2d 385; People v. Cain (1995) 10 Cal.4th 1, 36, 40 Cal.Rptr.2d 481, 892 P.2d 1224; People v. Kelly (1992) 1 Cal.4th 495, 526, 3 Cal.Rptr.2d 677, 822 P.2d 385.) In addition to the standard reasonable doubt instruction, the jury was advised that appellant “is presumed not to be a sexually violent predator,” and “in [the] case of a reasonable doubt whether he meets the criteria, he is entitled to a verdict that he does not meet the criteria of a sexually violent predator as described in these instructions.” The further instruction was given to the jury that the burden of proving appellant is a “sexually violent preditor [is] beyond a reasonable doubt.” We think the jury, upon hearing the instructions in their entirety, was capable of separating the criteria of the “likely” commission of future sexually violent acts from the standard of proof of beyond a reasonable doubt. We must “assume that the jurors are intelligent beings and capable of understanding and correlating all instructions which are given to them.” (People v. Billings (1981) 124 Cal.App.3d 422, 428, 177 Cal.Rptr. 392; see also People v. Vega (1990) 220 Cal.App.3d 310, 318, 269 Cal.Rptr. 413.) The statute and instructions do not permit the element of likely future criminal conduct to be proved by a standard less than beyond a reasonable doubt.

IX.-X ***

XI. The Denial of Custody Credits.

 We move to appellant's contention that he was improperly denied credits for the time “actually spent in custody” before his SVP trial.   Appellant observes that while awaiting trial on the petition, he spent 177 days in prison “rather than in a treatment facility,” all after his determinate term expired.   In the alternative, appellant argues that his two-year commitment must run from “the date his sentence terminated” on May 16, 1996, “not from the day of the order” of his confinement as an SVP on January 24, 1997.

Appellant concedes the failure of the SVP Act to specifically award pre-trial custody credits.   Nevertheless, he relies upon the provision in section 6604 that a committed sexually violent predator “shall not be kept in actual custody longer than two years,” to support his claim for an award of custody credits or a modified date of expiration of his two-year commitment term.   He also argues that Penal Code section 2900.5 grants credits for time in custody “attributable to proceedings related to the same conduct for which the defendant has been convicted” (id., subd. (b)) and defines term of imprisonment as any period “prior to release on parole and any period of imprisonment and parole, prior to discharge, whether established or fixed by statute, by any court, or by any duly authorized administrative agency,” (id., subd. (c)) must be applied to SVP proceedings.   We must interpret the statutes to determine appellant's right to pre-commitment credits.

 The fundamental principle of statutory interpretation is to “ ‘ ascertain the intent of the Legislature so as to effectuate the purpose of the law.   In determining that intent, we consider the statute read as a whole, harmonizing the various elements by considering each clause and section in the context of the overall statutory framework.’  (People v. Jenkins (1995) 10 Cal.4th 234, 246 [40 Cal.Rptr.2d 903, 893 P.2d 1224].)  ‘[W]e first examine the words of the respective statutes:  “If there is no ambiguity in the language of the statute, ‘then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.’  ․ ‘Where the statute is clear, courts will not “interpret away clear language in favor of an ambiguity that does not exist.”  ․’ ” ․ If, however, the terms of a statute provide no definitive answer, then courts may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history․  “We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.” '  (People v. Coronado (1995) 12 Cal.4th 145, 151 [48 Cal.Rptr.2d 77, 906 P.2d 1232], citations omitted.)   The rules of construction are subordinate to the primary rule that a statute must be interpreted consistent with legislative intent.  (Estate of Banerjee (1978) 21 Cal.3d 527, 539 [147 Cal.Rptr. 157, 580 P.2d 657].)”  (People v. Steffens (1998) 62 Cal.App.4th 1273, 1283-1284, 73 Cal.Rptr.2d 314.)  “When legislative intent cannot be discerned directly from the statutory language, courts may look to a variety of extrinsic aids, including the objects the statute seeks to achieve or the evils it attempts to remedy, the legislative history, public policy, and the statutory scheme of which the statute is a part.  (People v. Woodhead (1987) 43 Cal.3d 1002, 1008 [239 Cal.Rptr. 656, 741 P.2d 154].)”   (People v. Bury (1996) 41 Cal.App.4th 1194, 1205, 49 Cal.Rptr.2d 107.)

 Nothing in the two-year maximum term of commitment specified in section 6604 suggests to us that time spent in custody prior to trial on an SVP petition must be subtracted from the ultimate confinement imposed.   The statute reads:  “If the court or jury determines that the person is a sexually violent predator, the person shall be committed for two years to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility ․, and the person shall not be kept in actual custody longer than two years unless a subsequent extended commitment is obtained․”  The statute does not offer any definitive guidance on the issue of when the two-year maximum term of commitment begins to run, but we conclude that to further the objectives of the SVP Act it must be measured from the date of the commitment order upon a finding that the person is an SVP, not the date of the expiration of the prior term of imprisonment.   The stated intent of the legislation is to confine and treat those committed “until such time that it can be determined that they no longer present a threat to society.”   (Stats.1995, ch. 763, § 1.)   The maximum term selected by the Legislature represents a determination that appropriate treatment for the SVP is for no more than a two-year period, absent an extension.   Granting credit for the time spent in custody pending trial does a disservice to the legislative objective by reducing the maximum period of confinement and treatment arbitrarily, dependent upon when trial is held.   To further the goal of the statutory scheme to confine and treat those likely to engage in future sexually violent criminal behavior, the commitment term must be measured from the date the decision is made that the person is an SVP and in need of treatment.   The language of the statute is consistent, as it provides that “[i]f the court or jury determines” a person is an SVP, a maximum two-year commitment is ordered, which seems to us to link the two-year period to the commitment decision rather than the end of the determinate term of imprisonment.

The Legislature, in fact, recently enacted section 6604.1, subdivision (a) which specifically decrees:  “The two-year term of commitment provided for in Section 6604 shall commence on the date upon which the court issues the initial order of commitment pursuant to that section.   The two-year term shall not be reduced by any time spent in a secure facility prior to the order of commitment.” (Stats. 1998, ch. 19, § 5.)   Although section 6604.1 was not effective until April 14, 1998, the Legislature declared its intent that the statute “does not constitute a change in, but is declaratory of, existing law.”  (Stats.1998, ch. 19, § 10.)   The legislative declaration, although not binding, is persuasive to us, and consistent with our finding of the intent of the law with respect to the two-year commitment period.   (People v. Cruz (1996) 13 Cal.4th 764, 781, 55 Cal.Rptr.2d 117, 919 P.2d 731;  West Pico Furniture Co. v. Pacific Finance Loans (1970) 2 Cal.3d 594, 609-610, 86 Cal.Rptr. 793, 469 P.2d 665.)   Section 6604 does not grant appellant custody credits or reduce his commitment term by the time spent in custody before he was declared an SVP.

 Nor, we conclude, does Penal Code section 2900.5 grant appellant the custody credits he seeks.   A commitment under the SVP Act is only tangentially “attributable to proceedings related to the same conduct” for which appellant was convicted.   A “strict causation test” is applied to determine the right to presentence credits under Penal Code section 2900.5.  (In re Bustos (1992) 4 Cal.App.4th 851, 855, 5 Cal.Rptr.2d 767.)   Our high court has approved of the “rule that a prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period.”  (People v. Bruner (1995) 9 Cal.4th 1178, 1191, 40 Cal.Rptr.2d 534, 892 P.2d 1277;  see also People v. Wiley (1994) 25 Cal.App.4th 159, 165-166, 30 Cal.Rptr.2d 701;  People v. Purvis (1992) 11 Cal.App.4th 1193, 1196-1198, 14 Cal.Rptr.2d 651.)   The commitment of appellant required a predicate finding that he suffered qualifying prior convictions, but his precommitment custody was attributable to evaluation and proceedings to determine his status as an SVP.   Following expiration of his determinate term, he was not in custody for proceedings related to the conduct for which he was previously convicted.   An award of precommitment credits to appellant is also not consistent with the legislative purpose of Penal Code section 2900.5, which is to equalize the actual time served in custody for given offenses and thereby prevent inequalities in total confinement among similarly sentenced defendants which arise where indigent defendants cannot post bail.  (People v. Bruner, supra, at p. 1192, 40 Cal.Rptr.2d 534, 892 P.2d 1277;  In re Rojas (1979) 23 Cal.3d 152, 156, 151 Cal.Rptr. 649, 588 P.2d 789;  In re Monterrosa (1987) 193 Cal.App.3d 851, 854-855, 238 Cal.Rptr. 535.)   Although appellant received no treatment before the commitment order, he neither was in the position of an indigent defendant unable to post bail nor otherwise received unequal treatment in sentencing.   Accordingly, appellant is not entitled to custody credits under Penal Code section 2900.5.  (People v. Bruner, supra, at p. 1192, 40 Cal.Rptr.2d 534, 892 P.2d 1277;  In re Monterrosa, supra, at p. 855, 238 Cal.Rptr. 535.)

XII. †

FOOTNOTES

1.   All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

2.   According to subdivision (a) of section 6600, an SVP is defined as “a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence 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.”

3.   A meta analysis is a compilation of statistics from relevant, scientifically legitimate studies.

4.   “Exclusive” pedophilia means a sexual attraction or preference strictly for children, without any ongoing relationships with adults.

5.   The SVP Act “does not specifically provide any procedural requirements, other than the right to be represented by counsel and to have a hearing, to determine such probable cause.”  (In re Parker, supra, 60 Cal.App.4th at p. 1469, 71 Cal.Rptr.2d 167.)   The probable cause hearing specified in section 6602 has been considered “a type of ‘preliminary hearing’ ” for those accused in a petition for commitment under the SVP Act, however.  (In re Parker, supra, at pp. 1461-1462 and fn. 10, 71 Cal.Rptr.2d 167.)   Therefore, we will review the rulings at the probable cause hearing as we would the rulings made at a preliminary examination in a criminal matter.

6.   According to section 6600.1, subdivision (b):  “ ‘Substantial sexual conduct’ means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.”

FOOTNOTE.   See footnote *, ante.

7.   Subdivision (c) of section 6600 reads:  “ ‘Diagnosed 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.”   In the corresponding Kansas statute, “mental abnormality” is defined as a “congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses․”  (Kan. Stat. Ann. § 59-29a02(b);  Hendricks, supra, at p. ----, 117 S.Ct. at p. 2077.)

8.   Section 6604 provides, in pertinent part:  “The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator.”   Proof beyond a reasonable doubt is required by the California Constitution for civil commitments.  (People v. Burnick (1975) 14 Cal.3d 306, 310, 314, 121 Cal.Rptr. 488, 535 P.2d 352.)

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

SWAGER, J.

STRANKMAN, P.J., and STEIN, J., concur.

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