People v. Allen, S148949.

CourtUnited States State Supreme Court (California)
Writing for the CourtGeorge
Citation187 P.3d 1018,44 Cal.4th 843,80 Cal.Rptr.3d 183
PartiesThe PEOPLE, Plaintiff and Respondent, v. Tony Lee ALLEN, Defendant and Appellant.
Docket NumberNo. S148949.,S148949.
Decision Date28 July 2008
187 P.3d 1018
80 Cal.Rptr.3d 183
44 Cal.4th 843
The PEOPLE, Plaintiff and Respondent,
Tony Lee ALLEN, Defendant and Appellant.
No. S148949.
Supreme Court of California.
July 28, 2008.

[187 P.3d 1022]

Superior Court, San Bernardino County; Kenneth G. Ziebarth*, Judge.

Christopher Blake, San Diego, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Jeffrey J. Koch and Gary W. Schons, Assistant Attorneys General, Brad Weinreb and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.


Defendant Tony Lee Allen committed two forcible rapes in 1990. (Pen.Code, § 261, subd. (a)(2).) He pleaded guilty to those offenses and was sentenced to 20 years in state prison. Upon his release from prison in 2001, he was committed to Atascadero State Hospital (Atascadero) under the Sexually Violent Predator Act. (Welf. & Inst. Code, § 6600 et seq. (SVPA or Act).1) This case arises from a proceeding to extend defendant's commitment as a sexually violent

187 P.3d 1023

predator. At the trial by jury in the underlying proceeding, defendant personally asserted a right and a desire to testify, but his counsel advised the court that for tactical reasons counsel was opposed to defendant's testifying. After informing defendant that counsel controlled this decision, the court agreed it would not be in defendant's interest to testify. For this reason, defendant did not testify. After the jury reached a verdict, the court extended his commitment.

We granted defendant's petition for review to address the issue whether a defendant in a sexually violent predator proceeding has a state or federal constitutional right to testify over the objection of his or her counsel.2 We conclude that a defendant in such a proceeding has a right under the California and the federal Constitutions to testify despite counsel's decision that he or she should not testify. We further conclude that the denial of the right to testify is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (Chapman). Finally, we conclude that the trial court's error in refusing to allow defendant to testify was harmless.


On November 29, 2004, the San Bernardino County District Attorney's Office filed a petition to extend defendant's commitment under the Act. On January 5, 2005, the trial court held a hearing to determine whether there existed probable cause to believe defendant was likely to engage in sexually violent predatory criminal behavior absent appropriate treatment and custody. On January 28, 2005, the trial court found probable cause and set the petition to extend defendant's commitment under the SVPA for a jury trial. (§ 6602.) Trial was held in August 2005, but the jury was unable to reach a verdict, and the trial court declared a mistrial.3 Following retrial in November 2005, the jury found true the allegation that defendant met the criteria of a sexually violent predator under sections 6600 through 6604, and the court ordered defendant committed to a state mental hospital for two years of confinement. (Former § 6604.)4

At trial, the People presented testimony of Drs. Robert Owen and Shoba Sreenivasan, psychologists retained by the State Department of Mental Health to evaluate defendant. The People also presented testimony of Dr. Jackson Rowland, a psychiatrist employed at Atascadero. Defendant presented no evidence.

Dr. Robert Owen testified that he reviewed police reports and court documents from the cases in which defendant pleaded guilty to rape, documents from the Department of Corrections and from Atascadero, and other medical and psychiatric records and reports concerning defendant.5 Subsequently, in October 2004, Owen met with defendant at Atascadero and interviewed him for approximately one and one-half hours about his life, including his sexual history. Owen also interviewed Michael Pritchard, a psychologist who was treating defendant at Atascadero.

187 P.3d 1024

Owen began by describing the two rapes of which defendant was convicted. In January 1990, defendant entered Sandra C.'s vehicle as she stopped in the parking lot of a small store to buy a soda. He asked for a ride, and she told him to leave. He demanded that she drive him "somewhere." After she did so, he directed her to stop the vehicle in an alleyway. He then pulled wires out of her ignition, disabling her vehicle. He unscrewed the lock on her side of the car and locked the doors, smoked cocaine and drank wine and forced her to do the same, grabbed her by the hair, held a screwdriver to her throat, hit her with the wine bottle, and sexually assaulted her. As he tried to reconnect the ignition wires, she escaped from the car and was assisted by a passing driver in contacting the police.

Approximately two weeks later, defendant entered Lisa L.'s automobile while she was waiting in the vehicle for a friend. Defendant wrapped his hands around Lisa's neck and dragged her out of her vehicle and to a dark area. She resisted, but noticed that he had a hammer. He raped and sodomized her. In the course of sexually assaulting her, defendant became angry and hit her in the face and arms with his fist. After sexually assaulting her, he smoked cocaine and blew smoke in her face and vagina.

Owen testified that these two offenses were predatory in nature because both victims were strangers to defendant, and opined that any future offenses also would be predatory. Owen explained that in evaluating whether a person's behavior reflects a sexual disorder, he focuses upon any pattern reflected in the behavior. In support of his opinion that defendant suffers from a sexual disorder, Owen testified concerning three incidents that occurred prior to the commission of the rapes of Sandra C. and Lisa L. but that did not lead to convictions.

In July 1989, defendant asked for a ride from Rhonda A., a woman he knew. She gave him a ride to one location, but then declined to drive him to another location. He became angry, grabbed her by the hair, pulled out a knife, forced her to the passenger side of the vehicle, and drove to various locations, smoking cocaine and speaking with persons where he stopped. At one home where they stopped, the occupants of the residence encouraged defendant to return the vehicle to Rhonda, but he refused. Rhonda reported the incident to the police.6

The next day, he smoked cocaine with Tambria R., a woman he encountered at a friend's apartment. Defendant then removed his clothing and asked Tambria to have sex with him. She was frightened by him and agreed to have sexual relations to avoid being raped. Later the same day, he returned with more cocaine, and when Tambria refused to have sex with him, he slapped her face, threatened her with a bottle, and raped and sodomized her for more than an hour. When defendant went to the restroom, Tambria escaped to a neighbor's apartment. The neighbor informed the police that Tambria was hysterical as she reported the assault, and that Tambria told the neighbor to call the police because the assailant had a beer bottle and was coming after her.

In September 1989, defendant approached Melanie H., 17 years of age, outside a grocery store where she had arrived at approximately 6:00 p.m. to buy food for her grandmother. Defendant asked Melanie to drink wine with him. When she declined, he grabbed her by the throat, forced her to drink some wine, and took her behind the store, where he ripped off her clothes and raped her on cement steps in a loading zone. Some children walked by while the rape was occurring, and Melanie motioned to them to get help. After raping Melanie, defendant wrote his telephone number on a piece of paper, gave it to her, and told her to call him and meet him the next day or he would kill her. Melanie reported the attack to the police. Owen testified that these assaults were predatory and violent and demonstrated a lack of volitional and emotional control.

187 P.3d 1025

Owen further testified that while defendant was in prison, he stalked female prison guards, attempted to be alone with them, made sexual statements to them, wrote a note to one proposing a personal relationship, stared at a female guard while standing in front of his cell door with the lights on and his erect penis protruding from his boxer shorts, and stared at another female guard while masturbating. This conduct led to defendant's repeated segregation in prison, but discipline did not deter him from continuing to engage in inappropriate sexual conduct toward female prison staff. Defendant also violated other prison rules by refusing to enter his cell, defacing property with gang graffiti, fighting with cellmates, stealing, and refusing to report for work.

After defendant was committed to Atascadero in 2001, he sexually harassed female staff members, stared at them for minutes at a time, attempted to move close to them, touched one on the leg, exposed his penis, and wrote sexual notes to staff, some of which were delivered by other patients whom defendant intimidated. Defendant's inappropriate behavior was reported to his parole officer within days after defendant arrived at Atascadero; his parole was revoked, and he was sentenced to an additional year in custody. While serving his sentence in 2002, defendant continued to defy authority and, in one incident, grabbed the arm of a female officer in the county jail and told her, "You know what I want."

Defendant continued to engage in inappropriate sexual behavior after he returned to Atascadero from county jail. He stared at female staff members and approached them. He told a staff member he would see her again outside of Atascadero. He loitered at the door of a female social worker whom he had been stalking, despite having been told he was not allowed to be...

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