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Name: People v. Whitney
Case #: F045372
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 06/02/2005

The defendant’s convictions in Texas for indecency with children were sexually violent offenses within the meaning of the Sexually Violent Predator Act. The alleged SVP priors were for violations of Texas Penal Code section 21.11(a)(1), which applies to improper sexual contact with a child under the age of 17. Defendant argued that the prior conviction did not qualify under the SVP act because the corresponding California statute, section 288(a), applies only to improper contact with children under the age of 14. The court of appeal rejected the argument that a trial court is not permitted to go beyond the elements of a foreign conviction in determining whether that conviction qualifies under the SVP act. The record here was clear that the victims in the Texas case were nine years old, and the court of appeal held that the trial court could properly look to mental health evaluations to see whether the Texas crimes fit the criteria under California law. The court further rejected the argument that Crawford v. Washington (2004) 541 U.S. 36 had superseded or undermined the holding in People v. Otto (2001) 26 Cal.4th 200. In Otto, the California Supreme Court held that provisions of the SVP act regarding the use of hearsay evidence to establish a prior conviction did not implicate due process or confrontation rights. Assuming without deciding that Crawford applies to a civil SVP proceeding, the court of appeal nonetheless held that the Sixth Amendment was not implicated where the hearsay that was admitted was limited to defendant’s own admissions, which he made no attempt to counter at the hearing.