I concur in the majority’s conclusion that Welfare and Institutions Code section 6600, subdivision (a)(3), authorizes the admission of hearsay contained in documentary evidence that is introduced to prove the-details underlying a prior conviction at issue in a sexually violent predator commitment proceeding. I further concur in the majority’s determination that the admission of the particular hearsay statements in the present case did not deny defendant due process of law. I write separately, however, because I disagree with the majority’s suggestion that the conviction of a crime, after trial or upon a plea of guilty, to which such hearsay statements relate constitutes the most critical factor demonstrating the reliability of the statements. (Maj. opn., ante, at p. 211.) As I shall explain, such a conviction does not necessarily establish the reliability of hearsay statements contained in presentence reports. The circumstances of each case must be evaluated to assess whether hearsay contained in documentary evidence is sufficiently reliable to be admitted in a proceeding under the Sexually Violent Predators Act (SVP Act) (Welf. & Inst. Code, § 6600 et seq.).1
A prerequisite to a commitment pursuant to the SVP Act is a factual finding beyond a reasonable doubt that the defendant is a sexually violent predator. (§ 6604.) Such a finding must include a determination that the defendant has been convicted of a sexually violent offense against two or more victims. (§ 6600, subd. (a)(1).)
Sexually violent offenses, within the meaning of section 6600, include specified crimes that (1) are committed by force, violence, duress, menace, *216or fear of immediate and unlawful bodily injury (id., subd. (b)); or (2) involve substantial sexual conduct with a child under the age of 14 years (§ 6600.1, subd. (a)). “ ‘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.” (§ 6600.1, subd. (b).)
Among the crimes that can support a finding that the defendant has committed a sexually violent offense is a violation of Penal Code section 288, subdivision (a), which provides in relevant part:. “Any person who willfully and lewdly commits any lewd or lascivious act. . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . .” As the majority recognizes, no particular form of physical contact is required to constitute a violation of this statute; a conviction is authorized for any and all sexually motivated touching of a child under the age of 14 years. (People v. Martinez (1995) 11 Cal.4th 434, 438, 452 [45 Cal.Rptr.2d 905, 903 P.2d 1037].) Thus, Penal Code section 288, subdivision (a), does not require that the crime have been accomplished by force, violence, duress, menace, or fear of injury, or that it involved substantial sexual conduct. Therefore, a defendant’s violation of this statute does not necessarily establish that he or she committed a sexually violent offense within the meaning of Welfare and Institutions Code section 6600.
Accordingly, in a proceeding under the SVP Act, evidence that the defendant was convicted of violating Penal Code section 288, subdivision (a)—without additional evidence of the circumstances of the crime—does not prove that the defendant has been convicted of a sexually violent offense. Welfare and Institutions Code section 6600, subdivision (a)(3), authorizes the People to prove such circumstances with documentary evidence, including sentencing reports. As established in the majority opinion, this provision also authorizes the admission of hearsay statements contained in these reports to establish the details of the crime.
The majority concludes, as do the People, that due process of law requires that hearsay statements contained in sentencing reports bear special indicia of reliability before they can be admitted to prove the details of a prior conviction in an SVP proceeding. This conclusion is supported by our decision in In re Lucero L. (2000) 22 Cal.4th 1227 [96 Cal.Rptr.2d 56, 998 P.2d 1019] (Lucero L.), which held that the out-of-court statements of children who are subject to juvenile dependency hearings (§ 300), if not corroborated by other evidence, are sufficient to support a jurisdictional *217finding only if the statements show particular indicia of reliability. In support of this holding, we emphasized a parent’s important liberty interest in maintaining custody of his or her child, the risk of an erroneous deprivation of that interest in light of the hearsay declarant’s legal incompetence to testify and the parent’s inability to cross-examine the child, and the governmental interest in producing an accurate and just resolution of dependency proceedings. (Lucero L, supra, 22 Cal.4th at p. 1247.) “ ‘The nonexhaustive list of factors that the United States Supreme Court has cited as relevant to the reliability of hearsay statements made by child witnesses in sexual abuse cases are (1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) use of terminology unexpected of a child of a similar age; and (4) lack of motive to fabricate. [Citation.]’ [Citation].” (Id. at p. 1239.)
The private interest at stake in the present case is compelling. A sexually violent predator faces a complete loss of liberty for a period of two years, followed by potentially indefinite recommitment proceedings in which the People might contend that he or she is collaterally estopped from relitigating the issue whether the prior conviction was sexually violent. As in Lucero L., supra, 22 Cal.4th at page 1247, the governmental interest in preventing child abuse is vitally important, but so is the interest in an accurate and just resolution of the proceeding. By requiring that victim hearsay statements in sentencing reports bear special indicia of reliability, the majority in the present case, as in Lucero L., determines that there is a significant risk of an erroneous deprivation of liberty based upon such hearsay statements.
Although the majority states that relevant factors in assessing the reliability of hearsay statements contained in sentencing reports include the circumstances in which the statements were made, the majority’s conclusion that the statements in the present case are inherently reliable is based upon other considerations: (1) Otto’s conviction of the crime to which the statements relate; and (2) his failure to challenge the accuracy of the statements in the underlying criminal proceeding. According to the majority, Otto’s conviction is the most critical factor demonstrating the reliability of the statements, and this factor “will nearly always be present in an SVP proceeding,” because a conviction to which the hearsay statements relate is a prerequisite to considering the sentencing report. (Maj. opn., ante, at p. 211.) The majority further relies upon the circumstances that Otto chose to enter into a plea agreement rather than confront the witnesses in the criminal proceeding, and that he had the opportunity before he was sentenced to review and challenge any inaccuracies in the sentencing report.
A conviction, however, does not necessarily constitute a critical factor demonstrating the reliability of hearsay statements in a sentencing report. *218Even where a defendant pleads guilty and recites that the sentencing report contains a factual basis for the plea, the report might contain accounts of victim statements describing conduct that relates to the offense, but that nevertheless is unnecessary to establish the elements of the offense. For example, a sentencing report might include statements indicating that the defendant, with lewd intent, (1) touched the arm of a minor 13 years of age; (2) threatened the minor with physical violence if the minor resisted that touching; and (3) engaged in other substantial sexual contact with the minor. All three of these statements relate to the crime set forth in Penal Code section 288, subdivision (a). The first statement, by itself, provides a factual basis for a plea of guilty to the offense set forth in that statute. Accordingly, a conviction under this statute does not establish the reliability of the second or third statements, which would be the only statements supporting a finding that the defendant committed a sexually violent offense within the meaning of the SVP Act.
The circumstance that a defendant is authorized in the underlying criminal proceeding to challenge details in a sentencing report does not necessarily establish that the hearsay statements contained therein are sufficiently reliable to satisfy due process concerns. Penal Code section 1170, subdivision (b), and rule 4.437 of the California Rules of Court guide a sentencing court’s decision whether to impose the lower, middle, or upper term when a penal statute specifies three possible terms of imprisonment. The purpose of the presentence report is to assist the court in assessing whether mitigating or aggravating circumstances justify the imposition of the lower or upper term rather than the middle term. In this context, “either party or the victim' . . . may submit a statement in aggravation or mitigation to dispute facts in the record or the probation officer’s report, or to present additional facts.” (Pen. Code, § 1170, subd. (b); see also Cal. Rules of Court, rule 4.437(e).)
These provisions seldom are relevant when a defendant enters into an agreement to plead guilty in exchange for the prosecution’s recommendation that the defendant receive a particular sentence. In this situation, the defendant has little, if any, incentive to challenge particular statements contained in the presentence report. Indeed, as the majority recognizes, the purpose of such plea agreements often is to avoid requiring that the victims testify at trial. If a defendant decides to challenge information contained in a presentence report, he or she possesses the right to call witnesses and present other evidence in mitigation of the punishment to be imposed. (Pen. Code, § 1204.) A prosecutor might decide to withdraw a plea agreement if the defendant chooses to pursue such a course of action. Thus, by concluding that hearsay statements in presentence reports are reliable because the defendant can challenge them before sentencing (or because the defendant *219could have cross-examined the declarants by going to trial), the majority effectively will discourage some defendants from entering into plea agreements and encourage them instead to cross-examine individuals who made the statements appearing in the reports. Such an effect thwarts—rather than furthers—the purposes underlying Welfare and Institutions Code section 6600, subdivision (a)(3).
In the present case, Otto did not subpoena the hearsay declarants or any other witnesses for the purpose of challenging the accuracy of the statements contained in the presentence report describing the details of his crime.2 Nor did he demonstrate that these witnesses were unavailable. Furthermore, as the majority opinion explains, the presentence report describes little, if any, touching that could support a conviction but that would not constitute substantial sexual conduct, and the report indicates that Otto admitted significant sexual conduct with the victims. Under these particular circumstances, I agree that the statements are sufficiently reliable to establish that Otto was convicted of a sexually violent offense within the meaning of section 6600, without considering whether the circumstances surrounding the making of the statements afford them special indicia of reliability.
In sum, although I believe that a defendant’s failure to challenge statements in a sentencing report sometimes can be a relevant factor in assessing the reliability of such statements, as can be the fact of his or her earlier conviction, I disagree with the majority to the extent it suggests that these factors necessarily or generally establish special indicia of reliability in a proceeding pursuant to the SVP Act. As in Lucero L, supra, 22 Cal.4th 1227, if the declarant of hearsay statements contained in a presentence report is legally incompetent or otherwise unavailable to testify if called as a witness by the defendant, such statements can support a necessary finding in a proceeding under the SVP Act only if they are corroborated by other evidence, or the circumstances surrounding the making of the statements demonstrate that they are inherently reliable. In the case of hearsay statements made by child witnesses in sexual abuse cases, reliability can be established by demonstrating, among other things, spontaneity and consistent repetition, the mental state of the declarant, use of terminology *220unexpected of a child of a similar age, and lack of a motive to fabricate the statement.
Kennard, J., concurred.
Appellant’s petition for a rehearing was denied September 12, 2001.
Subsequent undesignated statutory references are to the Welfare and Institutions Code.
The majority reserves the issue whether a defendant in a proceeding under the SVP Act has a due process right to call as witnesses the declarants of hearsay statements introduced against the defendant or other percipient witnesses. Nothing in the SVP Act suggests that the defendant is precluded from calling such witnesses, and the majority does not allude to any other legal justification for prohibiting the presentation of testimony relevant to factual issues to be litigated in the jury or court trial to which the defendant is entitled under section 6603. (Cf. In re Malinda S. (1990) 51 Cal.3d 368, 382-385 [272 Cal.Rptr. 787, 795 P.2d 1244] [parents have due process right to subpoena and examine individuals whose hearsay statements are contained in social studies admitted in juvenile dependency proceedings].)