People v. Shazier
| Decision Date | 18 August 2014 |
| Docket Number | No. S208398.,S208398. |
| Citation | 175 Cal.Rptr.3d 774,331 P.3d 147,60 Cal.4th 109 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Dariel SHAZIER, Defendant and Appellant. |
| Court | California Supreme Court |
Jill A. Fordyce, Los Gatos, 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.
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.
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.1 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 (2006) 42 Cal.Rptr.3d 570 (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.
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.2 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 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...
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