People v. Shirley CA4/3

Filed 12/15/20 P. v. Shirley CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G058079
v. (Super. Ct. No. M-13359)
DWAYNE MICHAEL SHIRLEY, OPINION
Defendant and Appellant.
Appeal from an order of commitment of the Superior Court of Orange
County, Gary M. Pohlson, Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and
Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
A jury found Dwayne Michael Shirley to be a sexually violent predator
under the Sexually Violent Predator Act, Welfare and Institutions Code section 6600
1
et seq. (SVPA). The trial court ordered him committed to the Department of State
Hospitals (DSH) for an indeterminate term.
Shirley does not dispute that he has been convicted of at least one predatory
sex offense under the SVPA or that he suffers from pedophilic disorder. In addition, he
does not contend that insufficient evidence supported the finding under the SVPA that he
has a diagnosed mental disorder which prevents him from exercising volitional and/or
emotional control over his actions, and he does not otherwise challenge the sufficiency of
the evidence supporting the jury’s finding he is a sexually violent predator.
Shirley raises two contentions of evidentiary error. First, Shirley contends
the trial court erred by excluding proffered testimony by one of the two defense expert
witnesses recounting details of the expert’s other patients’ behaviors that showed they
lacked volitional control over their actions. Second, Shirley contends the trial court erred
by allowing one of the two prosecution expert witnesses to testify on the issue of
Shirley’s lack of control in the context of nonsexual matters because he contends such
testimony was irrelevant.
We reject both contentions of evidentiary error and affirm. Shirley’s expert
witness was permitted to testify about behaviors he learned about and observed that can
demonstrate a lack of volitional control in the context of sexual matters and further
testified that Shirley did not exhibit those behaviors. The trial court did not abuse its
discretion by excluding as irrelevant additional evidence detailing such behaviors as
demonstrated by the expert’s other patients.
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise specified.
2
The trial court did not abuse its discretion by permitting the prosecution’s
expert witness to testify whether Shirley exhibited volitional control in the context of
nonsexual matters; the expert ultimately testified that Shirley lacked such control based
on Shirley’s conduct in relation to sexual matters. Even if the trial court erred in its
evidentiary rulings, neither ruling was prejudicial. We also reject Shirley’s contention of
cumulative error.
SUMMARY OF RELEVANT PORTIONS OF THE SVPA
The SVPA authorizes the indefinite involuntary civil commitment of
persons found to be sexually violent predators after they conclude their prison terms.
(Reilly v. Superior Court (2013) 57 Cal.4th 641, 646-647; People v. McKee (2010)
47 Cal.4th 1172, 1186-1187.) At trial on a commitment petition under the SVPA, the
prosecution must prove three elements beyond a reasonable doubt: (1) the person has
suffered a conviction of at least one qualifying “sexually violent offense,” (2) the person
has “a diagnosed mental disorder that makes the person a danger to the health and safety
of others,” and (3) the mental disorder makes it likely the person will engage in future
predatory acts of sexually violent criminal behavior if released from custody. (§ 6600;
see §§ 6603, 6604; People v. Shazier (2014) 60 Cal.4th 109, 126; People v. Yates (2018)
25 Cal.App.5th 474, 477.)
The prosecution, therefore, must carry the burden of proving beyond a
reasonable doubt “that because of a diagnosed mental disorder affecting the person’s
volitional or emotional control, ‘“it is likely he or she will engage in sexually violent
behavior” if released.’ [Citations.] ‘Likely,’ in this context, does not mean more likely
than not; instead, the standard of likelihood is met ‘when “the person presents a
substantial danger, that is, a serious and well-founded risk, that he or she will commit
such crimes if free in the community.” [Citations.]’” (People v. Shazier, supra,
60 Cal.4th at p. 126.)
3
A “‘[d]iagnosed mental disorder’ includes a congenital or acquired
condition affecting the emotional or volitional capacity that predisposes the person to the
commission of criminal sexual acts in a degree constituting the person a menace to the
health and safety of others.” (§ 6600, subd. (c).) “Expert testimony, specifically
testimony regarding diagnosis of a current mental disorder, is an important element in an
SVPA civil commitment proceeding.” (People v. Roa (2017) 11 Cal.App.5th 428, 443.)
“[E]xpert testimony is critical” because “the primary issue is not, as in a criminal trial,
whether the individual committed certain acts, but rather involves a prediction about the
individual’s future behavior.” (People v. McKee, supra, 47 Cal.4th at p. 1192.)
If the jury unanimously finds the person is a sexually violent predator, then
he or she is committed for an indeterminate term to the custody of the DSH. (§ 6604.)
Following commitment, the sexually violent predator is subject to annual mental
examinations to determine whether he or she continues to meet the definition of a
sexually violent predator. (§ 6604.9, subds. (a) & (b).)
FACTS2
Shirley, who is now 49 years old, has been diagnosed with pedophilic
disorder. Expert witnesses testified at trial that he also suffers from a combination of
antisocial personality disorder, bipolar disorder and/or borderline disorder. He also has
an intellectual disability manifested by, inter alia, his extremely low IQ test results and
short-term memory problems.
2
Given the limited scope of this appeal challenging evidentiary rulings pertinent to
whether Shirley lacked volitional and emotional control in sexual matters so as to make it
likely he will reoffend, our summary of facts is limited to provide relevant context for
those rulings.
4
I.
SHIRLEY IS CONVICTED OF AT LEAST ONE QUALIFYING SEXUAL OFFENSE; HE HAS
COMMITTED SEVERAL OTHER SEXUAL OFFENSES AGAINST YOUNG BOYS.
In 2000, Shirley molested D., a 10-year-old boy who suffered from an
unspecified disability. The incidents of molestation included Shirley touching D.’s penis,
Shirley having D. touch Shirley’s penis, and Shirley orally copulating D. Shirley
admitted he had touched D. and stated that, because of D.’s condition, he knew D. would
never come to court to testify. The charge against Shirley regarding D. was dismissed.
In 2001, Shirley befriended a woman and her two young boys at a homeless
shelter. Shirley took four-year-old G. and seven-year-old A. to the bathroom where he
fondled both boys. He was convicted of committing lewd and lascivious acts against G.,
a child under 14 years of age, in violation of Penal Code section 288, subdivision (a).
In 2003, Shirley lived in the same apartment complex as six-year-old M.F.
and his father. When M.F.’s father was arrested, M.F. was left in Shirley’s care until
M.F.’s grandmother arrived. Shirley took M.F.to his apartment where he sexually
assaulted him. Both prosecution expert witnesses and both defense expert witnesses
testified that Shirley’s assault of M.F. resulted in a qualifying conviction of a sexual
offense under the SVPA.
During an interview with a mental health professional, Shirley
acknowledged having engaged in deviant sexual behavior with boys and stated he had
almost 70 victims, most of whom were boys from homeless shelters.
II.
EXPERT TESTIMONY
Both of the prosecution’s expert witnesses and both of Shirley’s expert
witnesses testified at trial that: (1) Shirley’s conviction for committing a lewd and
lascivious act on M.F. constituted a qualifying sexually violent offense under the SVPA;
and (2) Shirley has pedophilic disorder. The following summarizes the expert witnesses’
5
testimony relevant to their opinions as to whether in light of his pedophilic disorder
Shirley lacks volitional and/or emotional control in sexual matters and whether it is likely
he would engage in future predatory acts of sexually violent criminal behavior if he were
released from custody.
A.
Prosecution Expert Dr. Charles Flinton
Psychologist Dr. Charles Flinton first evaluated Shirley in 2011 to
determine whether he qualified as a sexually violent predator. Dr. Flinton assessed
Shirley again in 2014, 2017, and 2018. During more than one of his interviews, which
included an interview in 2018, Shirley admitted his sexual attraction to prepubescent
children. Dr. Flinton testified that in addition to pedophilic disorder, he found Shirley to
have a mild intellectual disability, bipolar disorder, and antisocial personality disorder
which exacerbate Shirley’s primary diagnosis of pedophilic disorder.
Dr. Flinton concluded Shirley’s pedophilic disorder predisposed him to
commit further sexually violent acts as he lacked emotional and volitional control.
Dr. Flinton noted that Shirley continued to commit sexual offenses even after he was
confronted and faced consequences for his prior behavior and although he stated he did
not like the part of himself that behaved that way. Dr. Flinton testified Shirley’s failure
to respond to consequences “really speaks to his inability to control his behavior, and
there was nothing to tell [Dr. Flinton] that his behavior would stop because it hadn’t.” He
explained Shirley’s “sexual drive and compulsion to act out in this way was stronger than
his ability to control his behavior.” Dr. Flinton observed Shirley exhibited low empathy
toward his victims; he knew he would cause them harm.
In his evaluation of Shirley, Dr. Flinton utilized actuarial tools. He
considered peer associations, emotional regulation, cooperation with supervision, and
physical condition. He considered the Static-99R and the Stable-2007 risk assessment
tools, which he found to support his conclusion. He stated that as of 2018, Shirley was
6
doing better in treatment, but had failed to complete a sex offense treatment program and
had poor attendance in recommended groups.
Dr. Flinton ultimately concluded Shirley was likely to engage in sexually
violent, predatory criminal behavior as a result of his pedophilic disorder without
appropriate treatment and custody.
B.
Prosecution Expert Dr. Steven Jenkins
Dr. Steven Jenkins is a psychologist with the DSH who, like Dr. Flinton,
evaluated Shirley and found that he satisfied all of the requirements of a sexually violent
predator under the SVPA. He conducted an initial commitment evaluation of Shirley in
2017 and interviewed and evaluated Shirley in 2018.
Dr. Jenkins testified that in addition to having pedophilic disorder, Shirley
had antisocial personality disorder, borderline personality disorder, and a mild intellectual
disability; unlike Dr. Flinton, he did not diagnose Shirley as having bipolar disorder. He
testified that Shirley’s pedophilic disorder predisposed him to commit sexual crimes
while his other disorders and disability exacerbated that predisposition. Dr. Jenkins
testified that Shirley’s pedophilic disorder caused him to lack volitional and/or emotional
control evidenced by his repeated abuse of young boys while knowing his conduct was
wrong. He testified that Shirley does not have “a clear appreciation and recognition of
the consequences of his actions.” He further testified that the fact a patient does not act
on his pedophilic disorder while in the hospital where he is without access to children
does not mean the patient has volitional and emotional control. Dr. Jenkins noted Shirley
demonstrated impulsive behavior and angered easily.
Dr. Jenkins concluded it was likely Shirley would engage in sexually
violent, predatory criminal behavior as a result of his pedophilic disorder without
appropriate treatment in custody. He formed his opinion after using the Static-99R, the
7
Structured Risk Assessment, Static-2002R, and Stable-2007 diagnostic tools and a
psychopathy checklist for risk factors.
Dr. Jenkins acknowledged the availability of treatment options in the
community, but stated he believed Shirley lacked the volitional control and sincerity to
go to treatment; Shirley had not been receptive to treatment offered to him to date. He
testified that Shirley’s proposed release plan involving supervision through Regional
Center which would connect him to community sex offender treatment programs was
inadequate because such treatment would not be mandatory and there was “no clear
means of managing him.”
C.
Shirley’s Expert Dr. Christopher Fisher
Dr. Christopher Fisher is a clinical forensic psychologist who interviewed
Shirley in December 2017 and evaluated him in 2018 to determine whether he met the
criteria of a sexually violent predator. Dr. Fisher concluded Shirley’s pedophilic disorder
did not qualify as a diagnosed mental disorder under the SVPA because it did not
currently cause him emotional and volitional impairment to the point that he had serious
difficulty controlling his sexual behavior.
Dr. Fisher testified that it is improper to assume that a person who has been
properly diagnosed with pedophilic disorder “will always have difficulty controlling that
part of themselves” as conditions change, with or without treatment, particularly with
age. He stated he does not believe Shirley’s intellectual disability exacerbates his
pedophilic disorder or his impulsivity and immaturity. Dr. Fisher disagreed with other
experts that Shirley has antisocial personality disorder.
He explained Shirley suffered from nonexclusive pedophilia which means
he does not show an exclusive preference for children; exclusive pedophilia is a stronger
and more significant risk factor for reoffending. Dr. Fisher testified about the tests and
assessments, including the Static-99R assessment, upon which he relied in reaching his
8
opinion that Shirley was not likely to engage in sexually violent, predatory behavior at
this point in his life.
D.
Shirley’s Expert Dr. Douglas Korpi
Dr. Douglas Korpi is a forensic psychologist who, like Dr. Fisher,
concluded Shirley has the nonexclusive form of pedophilic disorder. He testified that he
believed Shirley to have borderline personality disorder and antisocial personality
disorder as well, but neither disorder rose to the level of qualifying as a mental disorder
under the SVPA. He explained that Shirley’s “really wild” behavior is due to his
borderline personality disorder which “waxes and wanes over time.” He did not agree
that Shirley has bipolar disorder. He further testified that there is no dispute Shirley “is
in fact so wild and crazy” but that his pedophilic disorder is a “small aspect of his
symphony of impulsivity.”
He stated he found Shirley to have exhibited a lack of volitional control by
“repeatedly doing things he thinks are naughty and he shouldn’t do.” Dr. Korpi testified
that he has also shown a lack of emotional control and that his pedophilic disorder
predisposes him to commit sexually violent acts.
Dr. Korpi testified about the tests and assessments he considered, including
the Static-99R assessment, in forming his opinion about the likelihood Shirley would
engage in further sexually violent acts. Dr. Korpi stated he considered that in 2006 and
2010, when Shirley was on parole, Shirley did not reoffend. Dr. Korpi testified he did
not reoffend because “he was being watched by Regional Center” and that would be the
arrangement again if he were released. Therefore, Dr. Korpi opined, Shirley would not
reoffend because of Regional Center’s supervision with which Shirley had cooperated in
the past. Dr. Korpi acknowledged that, unlike a commitment under the SVPA which is
involuntary, Regional Center’s involvement would be voluntary if Shirley were released
and Shirley would be free to opt out and walk away from Regional Center. Dr. Korpi
9
believed, however, that if released Shirley would not walk away because he would be a
homeless, registered sex offender without family who has health conditions. Dr. Korpi
stated Shirley is “like an 11- or 12-year-old” who is not going to run away.
Although Dr. Korpi believed Shirley would not likely reoffend with
Regional Center’s involvement, he also believed Shirley to be “a substantial danger”
without it. Dr. Korpi testified: “Without Regional Center, he would be doomed to
reoffen[d]” as “he is an impulsive man of limited IQ who likes anything male and so
simply cannot help himself when in the company of males, including children.”
PROCEDURAL HISTORY
In June 2011, the Orange County District Attorney filed a petition under the
SVPA to commit Shirley as a sexually violent predator. That same month, the trial court
found probable cause existed and ordered Shirley detained in a secure facility pending a
hearing to determine whether he was a sexually violent predator. In February 2015, the
trial court again found probable cause existed and ordered Shirley detained in a secure
facility pending a hearing to determine whether he was a sexually violent predator.
In July 2019, a jury found Shirley to be a sexually violent predator within
the meaning of the SVPA. The trial court ordered him committed to the DSH for an
indeterminate term. Shirley appealed.
DISCUSSION
“Subject to certain limitations inapplicable to the present discussion, all
relevant evidence is admissible (Evid. Code, § 351; see also Cal. Const., art. I, § 28,
subd. (d)), and relevant evidence is defined as evidence ‘having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the determination of the
action.’ (Evid. Code, § 210.) . . . The trial court has considerable discretion in
determining the relevance of evidence.” (People v Williams (2008) 43 Cal.4th 584,
10
633-634.) We review challenges to the trial court’s evidentiary rulings for an abuse of
discretion. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405.)
I.
THE TRIAL COURT DID NOT ERR BY PRECLUDING TESTIMONY ABOUT DR. FISHER’S
OTHER PATIENTS WHO LACK VOLITIONAL CONTROL.
Shirley argues the trial court erred when it prevented his expert witness
Dr. Fisher from testifying as to specific instances of behavior of the expert’s other
patients who lacked volitional control over their sexual behavior. We conclude the trial
court did not abuse its discretion by excluding such evidence as irrelevant. Even if the
court’s ruling constituted error, it would be harmless.
A.
Pretrial Discussions of Dr. Fisher’s Proposed Testimony Regarding Other Patients
At a pretrial hearing, the prosecutor orally requested that the court preclude
Dr. Fisher from providing, during his testimony, specific examples of a lack of volitional
control exhibited by his other patients that Dr. Fisher cited in his report. The prosecutor
argued:
“Dr. Fisher is going to testify that Mr. Shirley does have pedophilic
disorder; however, he does not find him to be a sexually violent predator because
Mr. Shirley’s pedophilic disorder does not give him a lack of volitional control and,
therefore, does not make him predisposed to commit sexually violent crimes.
“Now, in order to make this determination, Dr. Fisher states in his report,
compared to my other patients, he doesn’t do these things, and therefore, he has volitional
control.
“For example, . . . he said in his report, my other patients? They get caught
with child pornography all the time. My other patients, they will draw pictures of
children and, et cetera, which shows lack of volitional control.
11
“My problem with that is twofold. Number one, relevance to Mr. Shirley.
What other people do has no relevance on what—Mr. Shirley’s case. Number two, in
order for Dr. Fisher to make that testimony, it would be hearsay. Unless Dr. Fisher can
specifically say, I’ve caught him with child pornography, he can’t testify to that.”
Shirley’s trial counsel argued that such testimony is relevant as the basis of
Dr. Fisher’s opinion that Shirley does not have an emotional or volitional impairment.
The trial court inquired of the prosecutor: “Isn’t this what all these experts
do is they talk about their experience with other patients?” The prosecutor responded:
“They don’t get into detail about their other patients. They simply say, he’s a sexually
violent predator. They simply say that he has—he lacks volitional control.
“He doesn’t say, well, my other patients go to treatment and do the
homework; he doesn’t. You see . . . all they’ll testify is Mr. Shirley doesn’t go to SOTP,
he doesn’t participate, and he gets into fights, et cetera. They never once say, my other
patients don’t ever get into fights. My other patients actually go to class and they pass
SOTP. They stick to Mr. Shirley.
“Their—her doctor’s going to say, my other patients are way worse than
him and, therefore, he . . . actually has volitional control, whereas they don’t.”
After the prosecutor and Shirley’s trial counsel offered additional argument
on the prosecutor’s objection that the evidence in question constituted inadmissible
hearsay, the hearing on this issue concluded with the trial court stating that the court was
going to rely on Shirley’s trial counsel’s representation that she was “going to only ask
relevant and admissible questions.” The court did not elaborate regarding what aspects of
Dr. Fisher’s proposed testimony the court deemed relevant and admissible.
12
B.
Before Dr. Fisher Testifies, the Trial Court Limits Dr. Fisher’s Testimony Regarding His
Other Patients’ Behavior.
Before Dr. Fisher testified at trial, the prosecutor requested that the court
revisit its ruling that Dr. Fisher was precluded from “testifying as to what his other
patients do.” The prosecutor cited the portion of Dr. Fisher’s report in which Dr. Fisher
noted “other patients who exhibit pedophilic disorders such as pasting pictures of
children’s faces on adult pornography and masturbating to them” and referred to “patients
who put pictures of children inside their underwear or draw pictures of patients or any
other type of volitional lack of control such as sexually assaulting female staff.”
The prosecutor stated: “The court had ruled that this was excluded based
on my motion that this is irrelevant. What . . . other patients do is irrelevant as to what
Mr. Shirley does in his evaluation of Mr. Shirley. And the court did rule that that was
excluded.”
Shirley’s trial counsel stated that she had a different understanding of the
court’s ruling. She stated: “Dr. Fisher is going to explain to the jury what volitional
impairment is and then give examples of some of the things that he’s personally
witnessed in regards to volitional impairment. It is foundational for his expert opinion.
It’s part of his training and experience. And it’s highly relevant.” After the trial court
stated, “I don’t see why it’s highly relevant,” the following colloquy ensued:
“[Shirley’s trial counsel]: Because it’s just like with any other expert that
testifies. Part of their expertise is their training and their experience, and when they’re
explaining volitional impairment, Dr. Flinton has kind of already explained to the jury
that volitional impairment can be shown because in the past when Mr. Shirley was in the
community back in 2003, he molested M[.]F.
“In regards to that, Dr. Fisher’s going to talk about volitional emotional
impairment and explain to the jury that there is a two-prong test in regards to diagnosis
13
and whether or not it’s a qualifying diagnosis. It’s not just a DSM diagnosis, it’s also
3
that it is current and that there’s current volitional emotional impairment.
“Dr. Fisher’s going to explain what he’s seen in this type of community.
Just like Dr. Flinton, Dr. Fisher has worked with men convicted of sex crimes, and he’s
going to talk about the types of volitional and emotional impairment he’s seen and how
that is relevant in his determination of whether or not Mr. Shirley is currently volitionally
and/or emotionally impaired.
“The Court: How does that help you?
“[Shirley’s trial counsel]: How does that help?
“The Court: Help you.
“[Shirley’s trial counsel]: It helps me because it’s his foundation as to why
he says that Mr. Shirley doesn’t have a current diagnosis pursuant to the SVPA. He will
testify that . . . Mr. Shirley has pedophilic disorder, but pursuant to the SVPA, it’s not
current. And that the literature talks about how pedophilic disorder is—can be lifelong
but also wanes over time and that the research shows that a lot of individuals who are
nonexclusive pedophiles are less likely to offend.
“And so with all of this together, his training and experience is highly
relevant in regards to these proceedings.”
The court responded: “But you don’t need to go into these specific acts of
pasting pictures of children’s faces and all that kind of stuff. That’s not relevant.” The
court further stated, “That’s not the case with Mr. Shirley.” Shirley’s trial counsel
responded: “Correct. And that’s part of the reason, based on his training and experience,
that he doesn’t find it a current diagnosis for Mr. Shirley.”
The court ruled that Dr. Fisher could “say it’s not a current diagnosis of
Mr. Shirley” but “[w]e’re not going into this other—what these other people do. That
3
The Diagnostic and Statistical Manual of Mental Disorders, 5th edition.
14
was the ruling before. It’s still the ruling.” In response to Shirley’s trial counsel’s
question, “So his experience isn’t relevant?” the court stated, “No. The
ruling . . . specifically goes to what . . . he’s talking about here. We’re not going to talk
about some other person [who] sticks pictures in his pants or something. We’re not doing
that.”
C.
Dr. Fisher’s Testimony Regarding Signs of a Lack of Volitional and/or
Emotional Control
During direct examination, Dr. Fisher testified that in determining whether
a patient meets SVPA criteria, “one thing we’re always looking for is that current,
objective kind of behavioral evidence that this person still has difficulty controlling their
pedophilia.” After Shirley’s trial counsel asked Dr. Fisher, “Is it fair to say that some of
the things that you’re taught to look for is photo collections of victim types?” the
prosecutor objected on relevance grounds.
A further hearing was held on the scope of Dr. Fisher’s testimony on this
issue.4 Shirley’s trial counsel stated that the court excluded testimony regarding behavior
Dr. Fisher personally observed and that counsel was intending to “only go into what
they’re taught to look for because it’s relevant to what he looked for in regards to Mr.
Shirley” on the issue of volitional and/or emotional control. The prosecutor reiterated
“[w]hat other patients do, whether he heard it, whether he personally saw it, is irrelevant
to Mr. Shirley.”
The trial court concluded Dr. Fisher could testify about what he was taught
to look for that shows a lack of volitional and/or emotional control as well as about his
experience with such behaviors short of testifying about what he personally saw in
specific cases not involving Shirley.
4
Shirley does not mention in his appellate opening brief this sidebar conference at which
the trial court clarified its ruling in Shirley’s favor.
15
In the context of determining whether an individual lacked volitional and/or
emotional control, Dr. Fisher thereafter testified that during his tenure at Napa State
Hospital, he was taught to look for and document “self-oriented items” like photos, or
drawings, or subscriptions to different magazines and “photo collections of a victim type
profile.” He testified he was taught to look for individuals who stalk their victim type.
He stated that “there’s lots of expressions of that kind of sexual interest that . . . can be
exhibited in these facilities.” He testified he looked for individuals who exposed
themselves, who engage in sexual harassment, or commit “sexual-type assaults.” He also
stated that he was taught to look for individuals who remain in their bedroom behind a
locked door, noting that while that does not necessarily mean something sexually deviant
is happening, it should be documented. He added that behavior exploiting other
lower-functioning patients or younger-looking individuals within the hospital setting
could be a sign and symptom “of the manifestation of the disorder.”
Dr. Fisher’s direct examination on this issue continued:
“Q And in regards to that, in the five and a half years that you worked at
Napa State Hospital, were these some of the behavioral manifestations that you witnessed
when you worked there with sex offenders?
“A Yes.
“Q And without getting into any of the details in regards to that, when you
were working with sex offenders, were you taught to specifically look for some of those
earmarked issues?
“A Yeah. Definitely.
“Q Okay. And when you did the evaluation on Mr. Shirley, did you see
anything within his file to indicate that those types of behavioral manifestations were
happening with Mr. Shirley?
“A No. Nothing of a sexual nature. Certainly nothing of a pedophilic kind
of nature.”
16
Dr. Fisher testified that Shirley does not currently lack volitional or
emotional control, 16 years after the qualifying conviction, and thus does not qualify as a
sexually violent predator under the SVPA.
D.
The Trial Court Did Not Abuse Its Discretion in Deeming Details Regarding Dr. Fisher’s
Other Patients Irrelevant; Any Abuse of Discretion Would Be Harmless.
Shirley argues the trial court erred by ruling that Dr. Fisher “could testify
that [Shirley] lacked a current diagnosis of pedophilic [dis]order, [but] could not testify as
to what other persons with that disorder did.” But at the sidebar conference that took
place during Dr. Fisher’s testimony, the trial court clarified its ruling that Dr. Fisher was
permitted to testify about what he was taught to look for in individuals that shows a lack
of volitional and/or emotional control as well as about his experience observing such
behaviors short of testifying about what he personally saw in specific cases not involving
Shirley. As discussed ante, during his trial testimony, Dr. Fisher identified several
behaviors he was trained to look for, at least some of which he personally witnessed
during his tenure at the hospital. Given Dr. Fisher’s permitted testimony, the trial court
did not abuse its wide discretion in concluding that evidence of specific details of
Dr. Fisher’s other patients’ behaviors, showing a lack of volitional control, would be
relevant to showing Shirley had volitional and/or emotional control.
In any event, Shirley has failed to show any error in the court’s ruling was
prejudicial. Dr. Fisher opined that Shirley had volitional and/or emotional control in part
because Shirley did not engage in behaviors Dr. Fisher had been taught to look for, some
of which he personally observed in other patients, that reflect a lack of such control.
Shirley does not explain how it is reasonably probable he would have received a more
favorable result had further testimony about Dr. Fisher’s observations of other
individuals’ specific behaviors showing a lack of volitional and/or emotional control had
17
been admitted. (People v. Samuels (2005) 36 Cal.4th 96, 113-114 [state law evidentiary
errors tested by People v. Watson (1956) 46 Cal.2d 818 (Watson) standard of prejudice].)
II.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY ALLOWING DR. JENKINS TO
TESTIFY REGARDING SHIRLEY’S DEMONSTRATED LACK OF CONTROL IN THE CONTEXT OF
NONSEXUAL MATTERS.
Shirley contends the trial court erred by allowing Dr. Jenkins to testify
about Shirley’s lack of control in the context of nonsexual matters because lack of control
is only relevant under the SVPA in the context of sexual matters. Shirley fails to show
the court erred or that any error was prejudicial.
A.
The Trial Court Overrules Shirley’s Objection to Dr. Jenkins’ Testimony.
During Shirley’s trial counsel’s cross-examination, Dr. Jenkins testified that
four months before trial he stated he had not seen in Shirley “any volitional impairment
as it relates to pedophilic disorder in the last three years.” Dr. Jenkins testified he could
not say the same about emotional impairments as it relates to pedophilic disorder. He
stated he believes Shirley to be emotionally impaired.
On redirect examination, Dr. Jenkins testified: “[W]e’re not required to
look at current status in terms of volitional impairment. Volitional impairment’s already
been established by his repeated pattern of sex offenses against children, his own
acknowledgement in the past of approximately 70 victims, there is volitional impairment.
“He knew what he was doing was wrong in 2000, at least when he was first
arrested for the . . . sex offense against D[.], and he continued to offend [in] 2001 and
2003. That’s volitional impairment,
“Furthermore, volitional impairment, just because [his disorder] waxes and
wanes or doesn’t occur within a specific amount of time doesn’t mean volitional
impairment is no longer present.
18
“For example, I, in my evaluations, can find someone no longer meets the
criteria as a sexually violent predator but they do have a pedophilic disorder and they do
have—are volitionally impaired and emotionally impaired, but they don’t meet that—
third criteria. They can be safely and effectively treated in the community.
“So volitional impairment is episodic, it can be based on
opportunity. . . . Mr. Shirley hasn’t had opportunity in the time he’s been in custody
since around 2010.” Dr. Jenkins clarified that the lack of opportunity he referred to
related to Shirley not having had access to children during that time.
The prosecutor then asked Dr. Jenkins, “Since the last three years, has there
been any indication that Mr. Shirley lacks volitional control, period?” Shirley’s trial
counsel objected on the grounds of relevance and the court held a sidebar conference.
Shirley’s trial counsel argued the relevant issue is whether Shirley is “currently
volitionally or emotionally impaired” because of his pedophilic disorder and whether he
has control issues in a nonsexual context is irrelevant.
The trial court asked the prosecutor why he would not ask his question
relating to volitional and emotional control in the context of sexual matters. The
prosecutor responded: “As the doctor’s indicating, he’s got no opportunity in the hospital
to show lack of volitional control. So my question is going to be, does he show
indications of lack of volitional control? Yes. So logic will say if he is presented with an
opportunity, guess what? He won’t have volitional control there either.”
The court ruled that the prosecutor “gets to ask the way he wants to” and
Shirley’s trial counsel “can cure it on cross.”
Dr. Jenkins thereafter testified Shirley “lacks volitional control based on his
pattern of behavior, his repeated offenses. He lacks emotional control because he does
not truly, deeply appreciate [the] consequences of his actions, the impact.” He further
testified that what is missing is the opportunity for Shirley to be around a child.
19
B.
The Trial Court’s Ruling Did Not Constitute Prejudicial Error.
In his testimony, Dr. Jenkins at least implied there was no direct evidence
of Shirley’s current (within the prior three years) lack of volitional or emotional control
with regard to his pedophilic disorder. That testimony was corroborated by Dr. Fisher’s
testimony that Shirley had not been recently observed engaging in behaviors that
typically reflect a lack of volitional and/or emotional control in the context of sexual
matters.
In the face of no such direct evidence, the trial court ruled that Dr. Jenkins
could testify about Shirley’s lack of volitional control generally, subject to
cross-examination. Shirley does not cite testimony after that ruling where Dr. Jenkins
testified about Shirley’s lack volitional control specifically outside of sexual matters.
Instead, Dr. Jenkins testified that in his opinion, Shirley currently lacked volitional
control as evidenced by “his pattern of behavior, his repeated offenses” and lacked
emotional control because “he does not truly, deeply appreciate [the] consequences of his
actions, the impact.” He further testified that Shirley told Dr. Jenkins in 2018 that he had
“some appreciation, but . . . he doesn’t follow through with that . . . because of his lack of
participation . . . or really good participation in treatment.” In other words,
notwithstanding the court’s ruling allowing the prosecution to inquire at least generally
about Shirley’s lack of volitional control in nonsexual matters, it appears Dr. Jenkins
ultimately based his opinion Shirley lacks volitional and emotional control on Shirley’s
prior sexual behavior and attitudes toward it.
In any event, even if we were to construe Dr. Jenkins’s testimony to relate
to nonsexual matters and also find the trial court’s ruling to permit that testimony as
constituting an abuse of discretion, any error was harmless in light of the given jury
instructions.
20
The jury was instructed on initial commitment as a sexually violent
predator with CALCRIM No. 3454 modified to state in part as follows: “The petition
alleges that Dwayne Shirley is a sexually violent predator.
“To prove this allegation, the People must prove beyond a reasonable doubt
that:
“1. He has been convicted of committing sexually violent offenses against
one or more victims;
“2. He has a diagnosed mental disorder;
“3. As a result of that diagnosed mental disorder, he is a danger to the
health and safety of others because it is likely that he will engage in sexually violent
predatory criminal behavior;
“AND
“4. It is necessary to keep him in custody in a secure facility to ensure the
health and safety of others.
“The term diagnosed mental disorder includes conditions either existing at
birth or acquired after birth that affect a person’s ability to control emotions and behavior
and predispose that person to commit criminal sexual acts to an extent that makes him or
her a menace to the health and safety of others.
“A person is likely to engage in sexually violent predatory criminal
behavior if there is a substantial danger, that is, a serious, and well-founded risk that the
person will engage in such conduct if released into the community.”
That instruction also stated: “You may not conclude that Dwayne Shirley
is a sexually violent predator based solely on his alleged prior conviction without
additional evidence that he currently has such a diagnosed mental disorder.” (Italics
added.)5
That instruction concluded: “In order to prove that Dwayne Shirley is a danger to the
5
health and safety of others, the People do not need to prove a recent overt act committed
21
We presume the jury followed the trial court’s instructions that before
finding Shirley to be a sexually violent predator, it must find that as a result of his
pedophilic disorder and not a general impulse control problem, it is likely that he will
engage in sexually violent predatory criminal behavior. (People v. Boyette (2002)
29 Cal.4th 381, 436.) Therefore, any error admitting the above quoted brief statements
by Dr. Jenkins regarding Shirley’s lack of volitional and/or emotional control was
harmless.
III.
CUMULATIVE ERROR
Shirley asserts cumulative error. “[A] series of trial errors, though
independently harmless, may in some circumstances rise by accretion to the level of
reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) “Under the
‘cumulative error’ doctrine, we reverse the judgment if there is a ‘reasonable possibility’
that the jury would have reached a result more favorable to defendant absent a
combination of errors.” (People v. Poletti (2015) 240 Cal.App.4th 1191, 1216.)
We have rejected both of Shirley’s contentions of evidentiary error for the
reasons set forth ante. Therefore, there was no cumulative error.
Even if his contentions of error had merit, it was not reasonably probable
Shirley would have obtained a more favorable result in their absence. (People v.
Samuels, supra, 36 Cal.4th 96 at pp. 113-114 [state law evidentiary errors tested by
Watson standard of prejudice].)
while he was in custody. A recent overt act is a criminal act that shows a likelihood that
the actor may engage in sexually violent predatory criminal behavior.”
22
DISPOSITION
The order of commitment is affirmed.
FYBEL, J.
WE CONCUR:
_______
MOORE, ACTING P. J.
THOMPSON, J.
23