P v. SHAZIER

Filed 5/8/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Dariel Shazier was adjudged a sexually violent predator (SVP) and subjected to involuntary civil commitment under the Sexually Violent Predators Act (SVPA or Act). (Welf. & Inst. Code, § 6600 et seq.)

In this appeal from the commitment order, defendant asserts a claim of prosecutorial misconduct.

For reasons explained below, we accept defendant's claim, and reverse the order of commitment.

Statement of the Facts and Case

As a result of two cases in 1994, in which defendant pleaded guilty to the sexually violent offenses of sodomy with a minor under the age of 14 (Pen. Code, § 286, subd. (c)); sodomy with a minor under the age of 18 (former Pen. Code, § 286, subd. (i)); and oral copulation where the victim is unable to resist due to an intoxicating substance (Pen. Code, § 288a, subd. (i)), defendant was sentenced to 17 years 8 months in state prison.

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 the trial, Doctors John Hipka and Craig Updegrove testified for the prosecution regarding their evaluations of defendant's psychological condition. Both doctors diagnosed defendant with paraphilia not otherwise specified and personality disorder with narcissistic and antisocial features. Both doctors believed that based on defendant's past criminal conduct, his diagnosed mental disorders affected his emotional and volitional capacity, making it likely defendant would reoffend in a sexually violent predatory manner if released. Both doctors gave defendant a six on the Static 99 risk assessment tool, which correlates with a 52 percent chance of reoffending within 15 years.

As part of the defense case, Dr. Robert Halon testified regarding his assessment of defendant in October 2004. Dr. Halon testified that he administered several different psychological tests to defendant, and found that defendant did suffer from a mental disorder, but Dr. Halon disagreed with Doctors Hipka and Updegrove's diagnosis of paraphilia.

In addition to Dr. Halon, the defense presented Bret Boyle and Kirk Kramera, two psychiatric technicians that worked in defendant's Atascardero State Hospital housing unit, who testified to their daily observations of defendant. Both men testified that while the SVP unit was a place where inappropriate sexual conduct occurred regularly, defendant never participated in such conduct. Both technicians testified that defendant did not demonstrate any violent or sexually inappropriate behavior while housed in the unit, and did not participate in any grooming behavior of younger patients. The technicians further testified that defendant was â€