Trial Court: Santa Clara County Superior Court No.: 210813 Trial Judge: The Honorable Alfonso Fernandez and The Honorable Edward Frederick Lee (Santa Clara County Super. Ct. No. 210813)
The opinion of the court was delivered by: Rushing, P.J.
CERTIFIED FOR PUBLICATION
Defendant Dariel Shazier appeals an involuntary civil commitment order adjudging him a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA or Act). (Welf. & Inst. Code, § 6600 et seq.) An SVP must have "a diagnosed mental disorder that makes [him] a danger to the health and safety of others in that it is likely that he . . . will engage in sexually violent criminal behavior." (Welf. & Inst. Code, § 6600, subd. (a)(1), emphasis added.)
All of the experts who testified in this trial agreed that defendant's diagnosis of hebephilia, an attraction to pubescent young men, is not included in the DSM-IV, and "doesn't exist" as a mental disorder diagnosis. Moreover, all agreed that defendant did not demonstrate arousal by the use of force or violence in his sexual acts.
From the outset, securing a civil commitment of defendant as an SVP, following his 1994 conviction, has been difficult for the prosecutor. Indeed, defendant's first trial resulted in a hung jury. We reversed the judgment in defendant's second trial, finding the prosecutor committed prejudicial misconduct during the trial. (People v. Shazier (2006) 139 Cal.App.4th 294.)*fn1
During the third trial in this case, the prosecutor told the jury in his closing argument that their finding for defendant would subject them to ignominy within their community, and that it was likely that defendant, who he described as a "prolific child molester," had other victims who had not reported his crimes However, there was no evidence presented at trial that defendant had committed additional uncharged crimes against unknown victims.
Defense counsel objected to the prosecutor's improper arguments and statements throughout trial; however, the court overruled all of these objections. We find the prosecutor committed misconduct in this case that prejudiced the defendant. The judgment must be reversed.
STATEMENT OF THE FACTS AND CASE
In April 2003, the Santa Clara County District Attorney filed a petition to commit defendant as a SVP (Welf. & Inst. Code, § 6600 et seq.). The first jury trial resulted in a mistrial because of a hung jury.
The second jury trial was conducted in March 2005. During motions in limine, the trial judge admonished counsel that there be no mention of the fact that defendant would be sent to a state hospital if the allegations that he was a SVP were found true. During closing argument, the prosecutor directly violated the court's in limine order, and told the jurors they should not make their decision in the case based on their consideration of life would be like for defendant in "Atascadero State Hospital."
Following the second jury trial in March 2005, the jury found true that defendant was a SVP within the meaning of the Act, and the court ordered defendant committed for two years. We reversed his commitment finding that the prosecutor's comments to the jury regarding Atascadero State Hospital violated not only the court's in limine ruling, but also the proscription against comments regarding the outcome of the SVP trial set forth in People v. Rains (1999) 75 Cal.App.4th 1165, 1169.
The case currently before this court is an appeal from defendant's third trial on the petition to commit him as an SVP. During the trial, the prosecutor presented two experts, Doctors Updegrove and Murphy, who testified to defendant's mental condition. Dr. Updegrove testified that he believed defendant met the criteria as an SVP. Dr. Updegrove also testified that defendant suffered from paraphilia*fn2 n.o.s. non-consent, specifically hebephilia, which he explained was a sexual attraction to teenage boys who have attained puberty. He further stated hebephilia is life-long and cannot be cured. He also stated that defendant was not a pedophile. Dr. Updegrove conceded that defendant is not aroused by force or violence, and that the only reason his prior crimes were considered nonconsensual was because the victims were minors who could not legally consent.*fn3 He further stated that hebephilia is a very controversial diagnosis, and has not been widely used until the advent of civil commitment cases. Dr. Updegrove testified that based on the tests he administered, defendant had a moderate to moderate-high risk to re-offend.
Dr. Murphy testified that she also believed defendant qualified as an SVP. She further stated that he suffered from hebephilia, but acknowledged that hebephilia "doesn't . . . exist" as a diagnosis of mental illness listed in the DSM IV.
Defendant presented the opinion of Dr. Donaldson, who testified that defendant does not qualify as an SVP, because he does not have a diagnosable mental disorder that predisposes him to sexual violence. Dr. Donaldson confirmed Doctors. Murphy and Updegrove's testimony that paraphilia n.o.s. non-consent, specifically hebephilia, does not exist as a diagnosis of a mental disorder in the DSM IV, and that it was created in the advent of SVP cases.
Dr. Donaldson stated that a diagnosis of a mental disorder is not dependent on what is considered socially acceptable or moral. He confirmed that homosexuality was removed from the DSM because is it no longer considered a mental disorder, and was only included in the DSM because of social views of morality at the time. Dr. Donaldson further stated with regard to hebephilia, many adult men are attracted to teenage young women, and while most do not act on this attraction, the fact that some men do does not necessarily mean they suffer from a mental disorder.
Dr. Donaldson testified that defendant has a relatively low risk of re-offending, because he does not have a diagnosable mental disorder that causes him to be dangerous.
Defendant also presented the testimony of people who resided with defendant while in treatment, as well as employees of the state hospitals where defendant was housed. All of the witnesses similarly testified that defendant followed all the rules, served as a leader to other residents, participated willingly in voluntary treatment, and while presented with numerous opportunities to have sexual contact with vulnerable teenage boys housed with him, defendant did not display inappropriate sexual behavior.
Finally, defendant presented evidence he would have financial and emotional support from his family if released.
After a 15-day trial, the jury found the allegation that defendant was an SVP true. The court committed defendant to an indeterminate term.
On appeal from the civil commitment order, defendant asserts the prosecutor committed multiple acts of misconduct during the trial that were pervasive and prejudicial, resulting in an unfair trial.
Defendant's assertion of prosecutorial misconduct in this case is based on a series of incidents in which the prosecutor asked improper questions of the witnesses that elicited inflammatory answers, or made improper arguments to the jury.
In considering the effect of the prosecutor's conduct, we are mindful that "[p]rosecutors . . . are held to an elevated standard of conduct. 'It is the duty of every member of the bar to "maintain the respect due to the courts" and to "abstain from all offensive personality." (Bus. & Prof. Code, § 6068, subds. (b) and (f).) A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. [Citation.] As the United States Supreme Court has explained, the prosecutor represents "a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall ...