In sexually violent predator (SVP) trial, prosecutor committed misconduct by arguing that jurors would face contempt in their communities unless they found defendant to be an SVP; the error was harmless. Shazier was convicted of committing sexual offenses against young males on several occasions. While he remained incarcerated, the prosecution filed a petition to have him committed as an SVP. The jury’s finding that Shazier was an SVP was overturned on appeal due to the cumulative prejudice from multiple instances of prosecutorial misconduct. The prosecution’s petition for review was granted. Held: Reversed and remanded for decision of other appellate issues. Under the SVP Act, defendants serving a sentence may be referred for a civil commitment upon conclusion of their prison term (Welf. & Inst. Code, § 6600, et seq.). The prosecution must prove beyond a reasonable doubt that because of a mental disorder, it is likely (i.e., there is a substantial danger or risk) that the defendant will engage in acts of sexual violence if released. During argument in Shazier’s SVP trial, the prosecutor told jurors they “would face disapproval and contempt from their family, friends, and community unless they found defendant to be an SVP.” Defense objections to the argument were overruled. This was error. It was misconduct to attempt to influence the jury by citing public opinion or public reaction and to ask them to consider the social consequences they would face if they did not find Shazier is an SVP. However, given the strong evidence that Shazier met the SVP criteria, the instructions given and the fact the comments were relatively isolated in a lengthy argument, the error was not prejudicial.
It was arguably misconduct for the prosecutor to insinuate the defendant had committed other, undisclosed crimes. In discussing the predictive reliability of tests assessing the risk that Shazier would re-offend, the prosecution experts suggested the assessment might understate the risk because they only measure charges and convictions, and do not take into account the many sex offenses that are uncharged and unreported. In his testimony, Shazier denied he had committed offenses other than those for which he had been prosecuted. In argument, the prosecution, over objection, implied that Shazier had committed other offenses that went unreported. This was arguably misconduct because it is doubtful the prosecution had a proper basis to imply that Shazier had committed other crimes. However, it was harmless. The court also disagreed with the Court of Appeal’s determination that the prosecutor committed seven other instances of prosecutorial misconduct during closing arguments.