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Name: People v. O’Shell
Case #: D052648
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/08/2009

The trial court’s error in excluding testimony of SVP’s fear of a third strike conviction was harmless. O’Shell appealed an order committing him to the custody of the Department of Mental Health as a sexually violent predator (SVP). He contended on appeal that the trial court erred in precluding him from testifying to the jury that he faced a life sentence under the Three Strikes law if he reoffended. The appellate court agreed that the trial court erred when it excluded the testimony. Whether O’Shell was likely to reoffend was a fact of consequence as to the determination of the action, and the testimony had some tendency to disprove the likelihood of reoffense. However, reversal was not warranted because there was an insufficient showing of prejudice. Evidence concerning O’Shell’s enhanced motivation to avoid a felony conviction was relevant, but tangential to the primary disputed issue at trial. The defense tried to show that even if O’Shell might reoffend, it was not because of any mental disorder. Further, the evidence was overwhelming and largely uncontested that O’Shell posed a substantial serious risk of reoffending upon release. It was not reasonably probable that had the court allowed O’Shell’s testimony concerning his fear of the Three Strikes law, the jury would have reached a different verdict.