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Superior Court of Santa Clara County, No. 210813, Alfonso Fernandez and Edward F. Lee, Judge. Court of Appeal, Sixth Appellate District, No. H035423.
Jill A. Fordyce, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Seth K. Schalit, Laurence K. Sullivan and Bridget Billeter, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Baxter, J., with Cantil-Sakauye, C. J., Werdegar, Chin, Corrigan, Liu, JJ., and Bigelow, J.,[*] concurring.
We granted the People's petition for review after the Court of Appeal overturned, for the second time, a jury's finding that defendant Dariel Shazier must be committed for secure confinement and treatment as a sexually violent predator (SVP) under the sexually violent predators act (SVPA; Welf. & Inst. Code, § 6600 et seq.). As the instant jury heard, defendant has served two separate prison terms for sex crimes, some forcible, against 13- to 17-year-old boys. Each time he was released on parole from the first sentence, with prohibitions against contact with minors, he soon violated those conditions and committed new offenses against members of the same target group. These acts resulted in several revocations of parole and, ultimately, in new convictions and imprisonment.
The instant jury also heard two expert witnesses opine defendant has a diagnosed mental disorder that impairs his volitional or emotional control and poses a danger to the health and safety of others by making it likely he will commit new predatory violent sex offenses unless securely confined and treated. A defense expert disagreed, asserting that defendant's persistent sexual misconduct against postpubescent minors was merely criminal behavior and did not evidence a mental disorder as required for commitment under the SVPA.
There have been three trials on the petition to commit defendant as an SVP. The first trial resulted in a hung jury. A second jury found defendant met the criteria for commitment, but the Court of Appeal reversed because it found the prosecutor's violation of an in limine order to be prejudicial. We granted review and held the case for another matter then pending before us, but we ultimately dismissed review, thus reinstating the Court of Appeal's judgment. After a third jury trial, and a second SVP finding, the same Court of Appeal panel has again reversed, concluding that defendant suffered cumulative prejudice from multiple instances of prosecutorial misconduct.
We conclude the Court of Appeal erred in reversing the trial court judgment on these grounds. We identify one clear instance of misconduct, and one other instance of arguable misconduct. However, there is no reasonable probability these incidents, either singly or in combination, affected the outcome, nor did they render the trial fundamentally unfair. We will therefore reverse the judgment of the Court of Appeal.
Unfortunately, the Court of Appeal's ruling caused it to stop short of considering several additional claims raised by defendant. We will therefore remand the matter to that court for consideration of these additional issues.
FACTS AND PROCEDURAL BACKGROUND
A. Events preceding defendant's third SVP trial.
In October 1994, based on events occurring from August 1993 to April 1994, defendant pled guilty to sodomy and oral copulation of a drugged or intoxicated victim (Pen. Code, § § 286, subd. (i), 288a, subd. (i)) against a 17-year-old boy, forcible sodomy ( id., § 286, subd. (c)) upon a 14-year-old boy, and multiple counts of child molestation ( id., § 647.6) against boys ranging in age from 13 to 16. He was sentenced to a prison term of 17 years eight months.
In May 2003, while defendant was still incarcerated, the Santa Clara County District Attorney filed a petition to commit him as an SVP.  The original trial resulted in a hung jury. In March 2005, defendant was tried again. Prior to trial, the court ordered that there be no mention before the jury of the fact defendant would be sent to a state hospital (rather than prison) if the allegations were found true. However, during closing argument, the prosecutor told the jury it should not make its decision " 'based on what you think it's going to be like for [defendant] in Atascadero State Hospital.'" The second jury determined that defendant was an SVP, and he was committed for a two-year period. The Court of Appeal reversed, finding prejudicial misconduct in the prosecutor's remark. ( People v. Shazier [*] (Cal.App.) ( Shazier I ).)
We granted review in Shazier I and held the case for People v. Lopez (2008) 42 Cal.4th 960 [71 Cal.Rptr.3d 253, 175 P.3d 4], a criminal matter then pending before us that also concerned issues of prosecutorial misargument.
After our decision in Lopez became final, we dismissed review in Shazier I, thus reinstating the Court of Appeal's judgment in the latter case.
B. Evidence at third SVP trial.
At the third trial, in 2010, the People introduced documentary evidence that defendant had previously been convicted of a felony constituting a sexually violent offense (Welf. & Inst. Code, § 6600, subd. (a)(1)). The jury also heard facts about defendant's extensive history of sexual misconduct with postpubescent boys while he was free in the community prior to 1995.
Thus, in September 1987, defendant contacted two boys at a youth center and offered to show them karate. When one boy pulled a muscle, defendant got on top of him and massaged close to the boy's groin. Defendant was arrested for molestation, but the charges were dismissed.
In July 1988, defendant encountered several youths in a college dormitory. He enticed a 17-year-old boy into his car, saying he would show the minor some karate moves. Defendant supplied beer to the boy. They drove around and parked in an isolated area. Defendant straddled the boy, massaged his body and rubbed his penis. When the victim told defendant to stop, defendant offered him $ 60 to continue, and the victim declined. Defendant was charged with a lewd act, but the charge was dismissed.
In October 1988, defendant told a 16-year-old boy he was a movie star and offered the boy a part in a movie. After defendant lied to the boy's mother that he was her son's football coach, she gave permission for the two to go to dinner together. Instead, they went to a hot tub resort and then to defendant's room. There defendant had the boy undress and don nylon shorts. Defendant then digitally penetrated the boy's anus. Subsequent medical examination indicated anal lacerations. Soon thereafter, defendant was arrested in the clothing-optional section of the same facility, in the company of a 14- or 15-year-old boy, who was clad in nylon shorts. Defendant was giving this boy a massage. In December 1988, defendant was convicted and sent to prison.  He was paroled in late 1990, with requirements to avoid contact with minors and refrain from engaging in martial arts activity.
In April 1991, about three and one-half months after defendant's release on parole, evidence arose that he had established contact with about 15 minor boys to whom he offered free karate classes. He called these minors frequently on the telephone and kept names and telephone numbers in a
notebook. In interviews, two of the boys, aged 14 and 18, said defendant gave them massages that were " 'too close to their privates.'" He told one boy he was a police officer and was involved in movies. As a result of these contacts, defendant was found in violation of parole and returned to prison.
Defendant was paroled again in November 1991, with similar prohibitions against contact with minors and engaging in martial arts activities. Five weeks later, he was arrested after he invited a 15-year-old boy to his house for karate lessons. According to the minor, defendant offered to show him a " secret stretch" that should not be revealed to anyone else, then extensively massaged the victim's body. Defendant tried to develop a relationship with the victim by offering to teach him to drive and inviting him to play basketball at night. Defendant was again found in violation of parole and returned to prison.
In December 1992, defendant was released on parole once more, again with a condition against contact with minors. In April 1993, he offered karate lessons to a 15-year-old boy in his church. Later that year, his pastor confronted him about touching boys, and his association with the church ended. He became involved with a number of boys to whom he was providing martial arts training. He called himself " Master Tang," and described himself as a Hindu master. He developed a " 'cult-like following'" and persuaded several boys to participate in purification rituals that required they continue to kiss him until " they [got] it right." He was again taken into custody. Even while confined, he attempted to maintain mail contact with the boys.
In March 1994, defendant persuaded two young brothers, one 14 years old, to help him move furniture at his apartment. To conceal his true identity, because he knew he was violating his parole, defendant identified himself to the 14 year old as " Tim," and to the other brother as " Mike." During the incident, defendant took the 14 year old into the bathroom, turned off the light, and sodomized him. When the boy told him to stop, defendant said " 'shut up'" and continued the assault. The victim's anal lacerations further indicated an element of force. The attack ended when the brother appeared in the bathroom. Defendant gave the victim money not to tell anyone what happened.
On April 4, 1994, defendant contacted a 17-year-old boy at a fast-food restaurant, telling the boy he was a talent scout and the boy could make big money. Defendant brought the boy back to his house. He gave the boy a liquid drink and a glass of wine, which caused the boy to become intoxicated. After telling the boy to lie down, defendant rubbed the victim's legs and genitals and sodomized him. At some point during the incident, the victim
passed out. Later, the two played basketball, then returned to defendant's home. He began to massage the victim's legs, removed the victim's clothes, and again sodomized him. The victim said he did not resist because he feared defendant's martial arts capabilities.
The events of April 1993 through April 1994 were the basis for defendant's October 1994 felony convictions. As indicated above, at the time of the instant trial, he had since been in continuous secure prison or hospital confinement.
Two experts from the panel of SVPA evaluators under contract with the State Department of Mental Health (DMH) testified for the People.  Dr. Craig Updegrove, a licensed psychologist, diagnosed defendant with paraphilia " not otherwise specified" (paraphilia NOS), a lifelong disordered sexuality that can be controlled, but not cured. Defendant's particular form of the disorder, Dr. Updegrove suggested, is " hebephilia," which involves a sexual focus on underage boys who have attained puberty.  Dr. Updegrove also provided secondary diagnoses of personality disorder NOS and narcissistic traits.
Dr. Updegrove agreed that individuals who find postpubescent minors attractive, and even persons who have molested children, do not necessarily have mental disorders. However, he indicated that defendant's history reveals a singular, intense, and long-standing pattern of compulsive behavior, such that defendant has acted on his attraction again and again, by force if necessary, even after suffering severe and repeated penal sanctions for doing so, and even under supervised release on condition that he avoid all contact with minors. Dr. Updegrove also pointed to defendant's pattern of " grooming" his underage victims--manipulating them to gain their trust in order to exploit them sexually. Such persistent, compulsive, and manipulative behavior, Dr. Updegrove opined, demonstrates a disordered sexuality and an impairment of volitional control that predisposes defendant to reoffend against the target group.
With respect to defendant's risk of reoffense, Dr. Updegrove discussed defendant's scores on three commonly used actuarial risk assessment scales--the Static-99, and two more recent revisions, the Static-99R and the Static-2002R. Based on recidivism rates among sample groups of convicted sex
offenders, these scales identify and assign numerical weights to established facts about a particular offender, such as his or her age and history of sexual convictions, as bases for predicting the likelihood he or she will commit new sex offenses. Dr. Updegrove suggested that these scales, which at most track criminal charges and convictions, actually underestimate the true rate of sex crime recidivism because many offenses are not reported, or do not result in criminal action.
As Dr. Updegrove also explained, defendant's raw numerical scores on each of these scales must be evaluated in connection with the particular data sample group to which he most appropriately belongs. Dr. Updegrove placed defendant in the " high risk" group of offenders--those who have independently been screened from the general pool of convicted sex criminals for special attention as likely reoffenders. For this high risk group, defendant's numerical scores on the three scales translated to a five-year risk of reoffense ranging from 10 to 23 percent, and a 10-year risk of reoffense ranging from 12 to 32 percent--ranges variously described as moderate, moderately high, and medium high.
Dr. Updegrove conceded that defendant has not reoffended, exhibited sexual preoccupations, or presented behavioral problems in custodial settings since 1994, and that he has been cooperative with institutional staff. But Dr. Updegrove noted that defendant's historic lack of stable age-appropriate intimate relationships, his past poor performance on supervised release, the fact he has not been an " intrafamilial" molester, and his skill at " grooming" victims, all tend to increase the risk of reoffense, as well as the risk that any future sex offenses will be " predatory" --committed against strangers, or in relationships initiated for the purpose of sexual exploitation.
With respect to the need for secure confinement and treatment, Dr. Updegrove acknowledged defendant had voluntarily undergone therapy at CSH. However, Dr. Updegrove noted that at the time of trial, defendant had completed only two phases of the five-stage hospital treatment plan, and had not undergone the phases that directly prepare the patient for transition to the community. Moreover, in recent therapy, interviews, and psychological testing, defendant had exhibited some lack of candor and insight, and had attempted to present himself in a falsely positive light. In sum, Dr. Updegrove opined that defendant was reasonably likely to commit new predatory sex offenses unless securely confined. He asserted that defendant " has not had sufficient involvement in treatment or sufficient transparency, openness, really embracing a need for treatment that would allow him to be safely treated in the community."
Dr. Carolyn Murphy, a licensed clinical psychologist, expressed similar opinions on behalf of the People. Like Dr. Updegrove, she diagnosed
defendant with paraphilia NOS, specifically " sex with nonconsenting persons or minors," with a secondary diagnosis of personality disorder NOS. She confirmed that the paraphilia NOS diagnosis currently covers sexual disorders focused on postpubescent minors, for which there is at present no separate category of disorder listed in the DSM. Like Dr. Updegrove, Dr. Murphy indicated that paraphilia is chronic and incurable, though methods of managing and controlling related behaviors can be learned.
As support for her conclusion that defendant's sexual orientation involves a mental disorder, not merely a departure from current societal norms, Dr. Murphy cited his extended history of sexual misconduct, sometimes perpetrated against the victims' will or when they were intoxicated or in pain; his patient and elaborate efforts to manipulate and " groom" potential victims, even to the extent of persuading them he was a Hindu master; and, in particular, the persistence of this pattern of behavior despite escalating penalties and sanctions. The extended pattern of misbehavior despite sanctions, Dr. Murphy indicated, also suggests an impairment of volitional and emotional control that predisposes him to commit sex offenses.
With respect to defendant's likelihood of committing new sex offenses, Dr. Murphy's testimony was also similar to that of Dr. Updegrove. Dr. Murphy assigned defendant a numerical score of five on the Static-99R, though at trial she said she would be more comfortable with a four. She concurred that defendant belonged in the " high risk" or " high need" data sample group for predictive purposes.  Accordingly, like Dr. Updegrove, she concluded that defendant's numerical score correlated to a 20.1 percent risk of reoffense within five years, and a 29.6 percent chance of reoffense within 10 years--a " moderate-high" risk. She also agreed that the Static scales underestimate the risk of reoffense, because they only measure the chance of reconviction, and " generally speaking we do a lot of things that we're not caught for, and even when we're caught, we're not necessarily formally arrested or charged or convicted."
Dr. Murphy said several " dynamic" factors that might otherwise mitigate the predictive value of the Static scales--factors such as advanced age, physical disability, impotence, or 10 years in the community without reoffense--were not present in defendant's case. She acknowledged defendant's
good behavior in prison and hospital custody, but said that, given his frequent past reoffenses when free in the community, these latter factors " kind of balance each other out."
Dr. Murphy further opined that any new sex offenses by defendant were likely to be " predatory" --against strangers or in relationships forged for sexually exploitative purposes. She cited defendant's past pattern of frequenting places where teenagers are likely to be, his skill as a " groomer," and the absence of " significant psychological, emotional, or behavioral changes that override his ... documentary evidence."
Finally, Dr. Murphy indicated that defendant still required a secure custodial environment to prevent future offenses. She acknowledged defendant's progress in treatment at CSH, and his willingness to undergo voluntary treatment in the community. She also noted defendant would apparently have some family support if released. However, like Dr. Updegrove, she observed that defendant had not yet undertaken the hospital treatment phase that stresses " active relapse prevention planning." She found insufficient progress to override the statistical evidence and defendant's " sheer pattern and frequency of offenses over time."
Testifying for defendant, Dr. Theodore Donaldson, a licensed psychologist, disputed these conclusions. His testimony stressed his view that defendant does not have a diagnosed mental disorder as necessary for commitment as an SVP. Dr. Donaldson asserted that, for purposes of the SVPA, the subject must have some sort of paraphilic disorder that predisposes the person to sexual violence, and must also have serious difficulty in controlling his or her behavior. According to Dr. Donaldson, defendant has exhibited neither characteristic. While defendant may have a personality disorder, Dr. Donaldson indicated, this does not predispose him to sexual violence. Nor, Dr. Donaldson suggested, is there real evidence that defendant was specifically aroused by violence, or by his victims' nonconsent. Dr. Donaldson generally criticized the diagnosis of " paraphilia NOS nonconsent," saying it was an attempt, following the adoption of such laws as the SVPA, to " shoehorn" mere criminal rapists into a category of committable mental disorder.
Dr. Donaldson emphasized that, from a mental health standpoint, a sexual orientation, focus, or behavior is not " deviant," and thus a sign of mental illness, simply because it is illegal, immoral, or in violation of current societal norms. As Dr. Donaldson put it, " conflicts between the individual and society, including sexual ones, are not disorders unless [they are] due to [a] dysfunction within the individual." Thus, he suggested, " hebephilia" is not a valid diagnosis, because, absent a compulsion so strong that it impairs the person's
general functioning, sexual behavior with postpubescent teenagers--the legality of which may vary from place to place--does not, in and of itself, evidence a mental disorder.
Dr. Donaldson insisted defendant exhibited no evidence of such internal conflict or dysfunction. Dr. Donaldson saw no sign of a compulsive attraction, and no indication that defendant " was disturbed by [his behavior], that it bothered him, which I think you have to have if you're going to try to shoehorn it under paraphilia NOS." According to Dr. Donaldson, in order to find the SVPA element of difficulty in controlling behavior--an impairment of volitional control--there must be indications that the person attempted such control. " I could not find any evidence," said Dr. Donaldson, " that [defendant] ever tried to control his behavior or even that he wanted to ... ." " If they're just doing it because they want to," Dr. Donaldson declared, " that's just criminal behavior."
Addressing defendant's likelihood of reoffense, Dr. Donaldson indicated he would interpret defendant's scores on the actuarial scales employed by the prosecution as suggesting a " fairly low" risk. In any event, Dr. Donaldson insisted he had " absolutely no confidence" in the predictive accuracy of these instruments. Criticizing the methodology of such scales as the Static-99 and the Static-99R, Dr. Donaldson indicated they account for only 10 or 11 percent of the uncertainty in prediction, reducing this uncertainty from 100 percent to about 89 percent. As a predictive tool, Dr. Donaldson declared, it is preferable simply to consult the " base rate" of sex offense recidivism in the United States, which, he stated, is " somewhere between four and six percent" over five years.
Dr. Donaldson declined to accept the prosecutor's suggestion that an offender who " will only admit to the precise number of victims for whom he has been caught ... is almost certainly lying." According to Dr. Donaldson, most unreported offenses are committed by a minority of offenders, making it inappropriate to assume that every offender has such crimes in his or her background. However, Dr. Donaldson acknowledged that unreported offenses would be more likely if the perpetrator was a " master manipulator" who could persuade victims to keep quiet out of " misplaced loyalty ... or fear." Dr. Donaldson conceded that " we have such evidence" in this case.
Ultimately, Dr. Donaldson confirmed his view that, aside from any risk of reoffense defendant presented, he was not an SVP because he lacked a diagnosed mental disorder as required for that status. Dr. Donaldson conceded that his views on this subject were at odds with the vast majority of
evaluators on DMH's panel of contract SVPA evaluators, and he admitted that in all SVP cases in which he had testified, he opined that the defendant was not an SVP. 
In his own testimony,  defendant admitted he was a child molester and was not contesting that he had the prior conviction or convictions necessary for SVP status. He denied having any victims other than those described in court and agreed he was " unlucky" for being caught every time he offended. Defendant conceded he was able to molest several of his underage victims because of his skill as a " master manipulator." He admitted he had once described himself as " addicted" to teenage boys, but he now denied this label, insisting he had learned through therapy to manage his attraction so he would not relapse. At trial, he claimed insight into his crimes and remorse for his victims, though he acknowledged he did not regret his acts when he was committing them, or even when, after being caught on prior occasions, he said he was sorry and had learned his lesson. He indicated that, although he had not progressed " that deep[ly] into therapy" at CSH, he was " learning about empathy."
There was no evidence defendant had reoffended while in prison and hospital confinement since 1994. He admitted that he had no access to underage males at CSH, but he pointed out that in prison there were 17-year-old inmates who had been tried and convicted as adults, and at CSH there were youths as young as 18. He indicated that, if released, he would live with his mother at her home in the Washington, D.C., area, and would
rely on her and his sister, who also lived in that area, for support. He asserted that his Islamic faith, developed since 1994, would also ...