People v. Shazier CA6

Filed 12/29/14 P. v. Shazier CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H035423 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 210813)

v.

DARIEL SHAZIER,

Defendant and Appellant.

Defendant Dariel Shazier has appealed his involuntary civil commitment order adjudging him a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA or Act) two times. (Welf. & Inst. Code, § 6600 et seq.) In both appeals, we reversed this commitment based on prosecutorial misconduct by the Santa Clara County District Attorney’s Office. This case was tried in the Santa Clara County Superior Court three separate times. The first trial resulted in a hung jury. We reversed the judgment in defendant’s second trial, because the prosecutor committed prejudicial misconduct during the trial. (People v. Shazier (2006) 139 Cal.App.4th 294, review granted Aug, 30, 2006, S144419.)1

1 The California Supreme Court granted a petition for review in People v. Shazier, supra, 139 Cal.App.4th 294 pending a decision in People v. Lopez (2008) 42 Cal.4th 960, another prosecutorial misconduct case. Following the court ruling in People v. Lopez, supra, the court dismissed the petition for review in People v. Shazier, supra.

During the third trial in this case, the prosecutor told the jury in his closing argument that if they were to find the petition not true, they would be subject to ignominy within their community. The prosecutor also told the jury that it was likely that defendant, who he described as a “prolific child molester,” had other victims who had not reported his crimes, when there was no evidence presented at trial that defendant had committed additional uncharged crimes against unknown victims. (People v. Shazier (2012) Cal.App.4th 520, review granted Apr. 17, 2013, S208398.) In the present appeal, we reversed the judgment based solely on prosecutorial misconduct that made defendant’s trial fundamentally unfair. The California Supreme Court granted review in this case, and issued an opinion on August 18, 2014. In it, the court agreed that the prosecutor committed misconduct by asking the jury what their friends and family would think if they returned a finding of “not true.”2 (People v. Shazier (2014) 60 Cal.4th 109, 143.) The Supreme Court also found the prosecutor committed questionable conduct when he implied to the jury that defendant had other victims who had not reported his crimes. However, the court found the prosecutor’s misconduct and his questionable conduct was harmless, and did not make defendant’s trial fundamentally unfair. The Supreme Court remanded this case to our court, for consideration of defendant’s additional arguments in the appeal.3 Specifically, the court ordered us to address defendant’s argument that his commitment should be reversed because “(1) the trial court improperly told the jury a true finding on the SVP commitment petition would