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People v. O'Shell

April 8, 2009


APPEAL from an order of the Superior Court of San Diego County, Peter L. Gallagher, Judge. Judgment is affirmed. Petition is denied. (Super. Ct. No. MH100473)(San Diego County Super. Ct. No. MH100473).

The opinion of the court was delivered by: Irion, J.


David O'Shell appeals an order involuntarily committing him for an indeterminate term to the custody of the State Department of Mental Health (DMH) after a jury found him to be a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (SVPA or Act). (Welf. & Inst. Code, § 6600 et seq.)*fn1

O'Shell argues that the order must be reversed because: (i) the trial court erred in precluding him from testifying to the jury that he faced a life sentence under California's Three Strikes law if he reoffended; (ii) the SVPA violates the state and federal constitutional guarantees of due process because, after an initial commitment, the Act places the burden on the committed person, rather than the state, to demonstrate that he or she no longer requires confinement; (iii) the SVPA violates the state and federal constitutional right to equal protection because it treats SVP's differently from other civilly committed persons without adequate justification; and (iv) his commitment is illegal because it was initiated by a process that relied on an improper "underground regulation." As discussed below, we conclude that O'Shell's contentions are without merit and affirm the judgment.


In 1982, at the age of 19, O'Shell met a 16-year-old boy at a party and drove him to an isolated area. O'Shell threatened the boy with a knife, forced him to orally copulate him and then sodomized him. O'Shell robbed the boy as well. O'Shell was apprehended and pleaded guilty to forcible oral copulation; he was sentenced to 11 years in prison. In 1990, 15 months after his release from prison, O'Shell began a relationship with a woman who had a 13-year-old son. For approximately four years after entering the relationship, O'Shell molested the son from one to two times a week; the molestation included oral copulation, masturbation and sodomy. In the course of this conduct, O'Shell threatened the victim's life and told him that if he did not comply, O'Shell would begin molesting the victim's brother. O'Shell was eventually caught and pleaded guilty to committing a lewd act upon a child; he was sentenced to 21 years in prison.*fn2

Two psychologists, Jeremy Coles and Thomas MacSpeiden, examined O'Shell for purposes of the SVP trial. After their examinations, Drs. Coles and MacSpeiden diagnosed O'Shell with a mental disorder, "paraphilia not otherwise specified" (paraphilia NOS).*fn3 Dr. Coles testified that the disorder was characterized by " 'recurrent, intense sexually arousing fantasies, sexual urges or behaviors generally involving [1.] non-human objects, [2.] the suffering or humiliation of oneself or one's partner, or [3.] children or other non-consenting persons that occur over a period of at least 6 months.' " Both doctors opined that as a result of this mental condition, O'Shell was likely, upon release from custody, to reoffend in a sexually predatory manner.

Two psychologists, Robert Halon and Christopher Heard, examined O'Shell for the defense*fn4 and determined that he did not suffer from a mental disorder. Drs. Halon and Heard testified that O'Shell was instead, like many criminals, simply prone to antisocial behavior. The doctors also criticized Drs. Coles's and MacSpeiden's reliance on paraphilia NOS, arguing that it was an incomplete diagnosis that simply deduced the existence of a nonspecific mental disorder from O'Shell's prior crimes.*fn5 O'Shell testified that he had changed in prison and would attempt to minimize the possibility of reoffending by avoiding contact with potential victims.


We discuss O'Shell's various appellate challenges below after providing a general overview of the SVPA.

I. Overview of the SVPA

The SVPA provides for the involuntary civil commitment of certain criminal offenders following the completion of their prison terms. To be eligible for commitment under the Act, an offender must be classified as an SVP, which is defined as "a person who has been convicted of a sexually violent offense against one 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).) " '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." (Id., subd. (c).)

SVPA proceedings are initiated by the Secretary of the Department of Corrections and Rehabilitation (the Secretary). When the Secretary determines that an inmate appears to meet the SVP criteria, the inmate is referred to the DMH for assessment.

(§ 6601, subd. (b).) The DMH "shall evaluate the person in accordance with a standardized assessment protocol, developed and updated by the State Department of Mental Health." (Id., subd. (c).) The protocol must involve an evaluation by two doctors "to determine whether the person is a sexually violent predator." (Id., subds. (a)-(d).)

If both doctors concur that "the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody," the DMH must request the filing of a commitment petition in the superior court in the county where the offender was convicted of the crime for which he or she is currently imprisoned. (§ 6601, subds. (d), (i).)

Once the petition is filed, the superior court holds a hearing to 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." (§ 6602, subd. (a).) If no probable cause is found, the petition is dismissed. However, if the court finds probable cause within the meaning of this section, the court orders a trial to determine whether the person is an SVP. (Ibid.) The precise issue at trial is "whether the person is, by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her release from the jurisdiction of the Department of Corrections or other secure facility." (§§ 6602, subd. (a), 6600, subd. (a)(1).) The statute also includes an "implied requirement" that the forecasted sexual violence be predatory, i.e., that it be " 'directed "toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization." ' " (Hurtado, supra, 28 Cal.4th at pp. 1186, 1182; § 6600, subd. (e).)

The alleged SVP is entitled "to a trial by jury, to the assistance of counsel, to the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports." (§ 6603, subd. (a).) The jury's verdict must be unanimous. (Id., subd. (f).)

At the conclusion of the trial, the trier of fact "shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator." (§ 6604.) "If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court shall direct that the person be released at the conclusion of the term for which he or she was initially sentenced, or that the person be unconditionally released at the end of parole, whichever is applicable. If the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health." (Ibid.; see generally People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922 (Ghilotti).)

A person found to be an SVP is entitled to an annual review to determine whether he or she "currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community." (§ 6605, subd. (a).) The SVP may also retain, or request court appointment of, a qualified expert to examine him or her. (Ibid.) If the DMH determines that the committed person is no longer an SVP or, alternatively, can safely be released to a less restrictive treatment setting, it shall file a petition with the superior court to that effect. (Id., subd. (b).) A probable cause hearing and subsequent trial follow at which the state must prove "beyond a reasonable doubt that the committed person's diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged." (Id., subd. (d).) If the fact finder determines that the state has not met its burden, the committed person must be released. (Id., subd. (e).)*fn6

The statute also provides for the SVP to petition for release without the concurrence of the Director of Mental Health. (§ 6608.) For these purposes, the SVP is entitled to the assistance of counsel and may file a petition with the superior court after one year of the initial commitment and at yearly intervals thereafter. (Id., subds. (a), (c), (h).) Unless the court deems the petition to be frivolous, or substantially identical to a previously denied petition (see id., subd. (a)), a trial is held with the court acting as finder of fact. (Id., subd. (d).) At the trial, the committed person must demonstrate that he or she is no longer an SVP by a preponderance of the evidence. (Id., subd. (i).) If the trial court rules in favor of the committed person, "the court shall order the committed person placed with an appropriate forensic conditional release program operated by the state for one year." (Id., subd. (d).) At the end of the year, the court holds a hearing to determine whether the (former) SVP should be unconditionally released. (Ibid.)*fn7

II. O'Shell's Testimony That He Faced a Life Sentence If He Reoffended Was Relevant but Its Exclusion Was Harmless

O'Shell contends that the trial court erred by excluding his testimony that he already had two strikes under the Three Strikes law and would not risk the automatic life sentence that would follow from a third strike. We address this contention after setting forth the pertinent procedural history.

A. Procedural History

Prior to trial, the prosecution moved to preclude any mention that O'Shell was a two-strike offender who would face a life sentence if convicted of a third felony. The defense opposed the motion, arguing that the potential consequences of reoffending, and O'Shell's knowledge of those consequences, were relevant to a determination of his likelihood of reoffending.

The trial court granted the prosecution's motion, stating that the evidence "goes to part of the punishment aspect" and "is not particularly relevant." The prosecutor then sought to "clarify" the court's ruling. The prosecutor noted that her "motion was not only that it was not relevant . . . but also that it would be prejudicial under Evidence Code [section] 352." The trial court stated, "So noted."

At trial, the prosecution called O'Shell as a witness. (See Allen, supra, 44 Cal.4th at p. 860 ["the Fifth Amendment's guarantee against compulsory self-incrimination does not apply in proceedings under the SVPA"].) The prosecutor asked O'Shell about the parole supervision he would receive upon release. The prosecutor pointed out that O'Shell had committed one of his prior offenses while on parole, and that parole supervision and the threat of revocation, "didn't stop you" from committing a second offense. The prosecution then attempted to elicit that O'Shell violated his probation as a juvenile offender, but O'Shell stated he did not recall any such violations. Finally, the prosecution elicited that an 11-year prison sentence "didn't deter [O'Shell] from molesting" the second victim. The prosecutor asked, "If you're [found] not to be an SVP and you're placed on parole, the fact that you could be violated, that won't affect you either, will it, sir?" O'Shell explained that he had changed while in prison.

In response to this line of questioning, defense counsel asked O'Shell about the consequences of a violation of his release conditions. O'Shell stated, "It's a violation. I can go back to prison." O'Shell added, "If a violation constitutes a felony, then I go to prison for a very long time." The prosecutor objected, and the trial court sustained the objection and instructed the jury to disregard O'Shell's answer.*fn8

B. The Excluded Evidence Was Relevant

O'Shell contends that the trial court erred in excluding as irrelevant his proposed testimony (and striking his testimony) that he was particularly motivated to seek treatment and avoid reoffending because he faced a life term if he reoffended under the Three Strikes law. We agree.

Unless otherwise provided by statute, "all relevant evidence is admissible." (Evid. Code, § 351.) " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness . . . , having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "[T]he trial court 'has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence.' " (People v. Weaver (2001) 26 Cal.4th 876, 933; Evid. Code, ยง 350 ["No evidence is admissible except relevant evidence"].) The SVPA itself contains a ...

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