P. v. Shellhouse

Filed 11/29/07 P. v. Shellhouse CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
DENNIS SHELLHOUSE,
Defendant and Appellant.
2d Crim. No. B194359
(Super. Ct. No. 2005019146)
(Ventura County)
Dennis Elliot Shellhouse appeals from the judgment entered after a jury convicted
him of kidnapping for ransom (Pen. Code, § 209, subd. (a)),1 first degree residential
burglary (§§ 459, 460, subd. (a)), two counts of making criminal threats (§ 422), and
exhibiting a firearm with the intent to resist arrest by a peace officer. (§ 417.8.) As to the
kidnapping for ransom, the jury found true an allegation that appellant had personally
used a firearm within the meaning of section 12022.53, subdivision (b). Except for the
offense of exhibiting a firearm, as to the remaining offenses the jury found true
allegations that appellant had personally used a firearm within the meaning of
section 12022.5, subdivision (a). The jury acquitted appellant of two counts of assault
with a firearm upon a peace officer. (§ 245, subd. (d)(1).) The trial court sentenced him
to a determinate term of 17 years plus life with the possibility of parole.
1 All statutory references are to the Penal Code unless otherwise stated.

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Appellant contends that the trial court erroneously (1) refused to instruct on his
"defense of unconsciousness resulting from involuntary intoxication caused by
prescription drugs," (2) permitted the prosecutor to cross-examine a psychiatrist
concerning statements made by appellant during his mental competency examination, (3)
failed to give a limiting instruction on the use of such statements, and (4) refused to strike
excerpts from the probation report that were not supported by the evidence. In addition,
appellant contends that the prosecutor committed prejudicial misconduct. We affirm.
Facts
Jamie Burtzloff, the victim of the kidnapping, resided in a gated community in
Thousand Oaks. On June 7, 2005, the security guard at the gate informed her that
someone wanted to make a delivery. Burtzloff waited in front of her house for the
delivery. Appellant drove up in a minivan and exited the vehicle. He said that he had a
delivery for Burtzloff's husband, but that she could sign for it with proper identification.
When Burtzloff started to hand her driver's license to appellant, he pointed a gun at her.
Appellant said, "We're going to go inside and talk."
Appellant and Burtzloff entered the house and went into the family room.
Appellant handed a ransom letter to Burtzloff. The letter demanded $50,000 in cash.
Burtzloff's housekeeper, Olga Rivera, was inside the house. Appellant told Rivera
that he would kill her if she did not cooperate with him.
Burtzloff saw a friend, Alyssa Woodall, coming up the walkway to Burtzloff's
house. Appellant said to Burtzloff, "Get rid of her." Burtzloff opened the front door and
"mouthed 'call 911' " to Woodall. Woodall ran to her car and drove away.
Appellant ordered Burtzloff to pack a bag and go with him.
Burtzloff refused. Appellant threatened to "pop" Burtzloff's daughter or Rivera if she did
not obey him. Burtzloff agreed to go with appellant.
Appellant and Burtzloff started walking toward appellant's minivan. Before they
reached the minivan, Burtzloff told appellant that she would not go with him. She said,
"If I go with you, you're just going to kill me."

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A neighbor drove by and asked if everything was okay. Appellant shouted, "Yes,"
but Burtzloff shouted, "No." The neighbor drove down the street and dialed 911.
Appellant said "something to . . . the effect . . . [of] I know what I'm doing. This
isn't over. I'll just come back and kill your whole family." Appellant entered his minivan
and drove away.
Deputy Sheriff Damian Schmidt responded to the 911 calls. He saw appellant's
minivan and pursued it. Schmidt and two other patrol vehicles followed appellant onto
the 101 freeway, where the pursuit continued and was joined by the California Highway
Patrol.
The pursuit ended in Alhambra. The tires of appellant's minivan deflated after the
vehicle had run over a spike strip. A California Highway Patrol officer executed a "pit
maneuver," forcing appellant's vehicle into a sound wall. Several patrol vehicles
surrounded the disabled minivan.
The Los Angeles County Sheriff SWAT Team drove three armored vehicles to the
scene. Upon arriving there, Deputy Tom Harris of the SWAT Team saw appellant inside
the minivan with "a phone in one hand and a gun in the other." He was pointing the gun
at his head.
The standoff between appellant and the SWAT Team continued for approximately
four hours. Finally, in an attempt to drive appellant out of the minivan, the team
members broke its windows and introduced tear gas inside.
Deputy Tom Harris saw appellant point a handgun "out the passenger door
window towards" Deputies Murray and Patterson. Deputy Jeffrey Coates saw appellant
raise his gun and point it in the "general direction" of other deputies. It appeared to
Coates that appellant was "looking to . . . shoot somebody." Coates shot appellant one
time.
Deputy Sheriff Anna Wollenzier was a member of the Crisis Negotiation Team.
During the standoff in Alhambra, she called appellant on his cellular telephone and
conversed with him for several hours.

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In his defense, appellant called Dr. Stuart Shipko, a board-certified psychiatrist.
His testimony was as follows:
Prior to his retention by appellant, Dr. Shipko had "not done any criminal case
work." He had never completed a training program in forensic psychiatry and had no
expertise in that area. "Forensic psychiatry is the subspecialty of psychiatry that involves
the application of psychiatry to the legal system such as a criminal case . . . ."
Dr. Shipko interviewed appellant on April 9, 2006. Appellant told Dr. Shipko that
he had stopped taking Prozac a year before the incident in question, but had started taking
it again a month before the incident. Persons who take Prozac "might experience mania
both when they start to take the drug and when they stop . . . ." Mania is a "mood
state" where "a person is inappropriately euphoric, they're filled with energy, they're
grandiose . . . ." Persons suffering from mania lack insight and have poor judgment.
Mania may deteriorate into psychosis. "Psychosis is a mental state in which the person is
not in touch with reality and it's characterized by hallucination and delusions."
Dr. Shipko was "more impressed" with appellant's taking of prednisone than
Prozac. On May 13, 2005, 25 days before the incident in question, appellant was given a
10-day, 20-milligram prescription for prednisone. Mania and depression "are common as
a side effect of prednisone." Prednisone can also cause delirium and psychosis. At the
dosage prescribed for appellant, approximately 1.3 per cent of persons develop "mania,
psychosis, or other mood changes."
Appellant told Dr. Shipko that he "liked the way it [prednisone] made him feel."
The drug "gave him a euphoria." Appellant said that prednisone made him feel "edgy,"
which Dr. Shipko interpreted as meaning "more mentally acute." Appellant told Dr.
Shipko that "he felt completely focused on the day he committed his crimes."
Dr. Shipko opined that, at the time of his examination of appellant in April 2006,
appellant was suffering from "a substance induced mood disorder manic type." The
substance was Paxil, which had been given to appellant for depression. The Paxil had
caused him to become "grandiose, inappropriately euphoric."

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Dr. Shipko was not capable of diagnosing appellant's mental state at the time that
the offenses had been committed. He had "no opinion about whether [appellant] was
exhibiting manic symptoms" at that time. However, Dr. Shipko opined that appellant
"was experiencing a manic episode when he took prednisone," and that he "may have
been in a manic state when he committed the crimes." Dr. Shipko found it difficult "to
assess the role of Prozac" in the commission of the crimes.
During appellant's telephone conversation with Deputy Wollenzier, the crisis
negotiator, appellant said that a "fortune from [a] fortune cookie is what gave him the
idea to come to California." This statement struck Dr. Shipko "as possibly delusional,
possibly a psychotic thought."
Appellant's testimony on direct examination was limited to the medications he had
been taking. Appellant testified that, from December 2004 to June 2005, he had taken
Prozac "on and off." It was "highly possible" that he had also taken prednisone during
this period of time. On cross-examination, appellant testified that he "was in a fog" up
until the incident in question. But things were "crystal clear at the crime scene in Ventura
County."
Instructions on Unconsciousness and Involuntary Intoxication
Appellant contends that the trial court erred in refusing to instruct on his "defense
of unconsciousness from involuntary intoxication caused by prescription drugs."
Appellant asserts: "[His] defense was that he was suffering from the unanticipated side
effects of Prozac and prednisone, prescription drugs that he was taking and which
rendered him manic and psychotic. He was acting unconsciously in the legal sense of the
term."
"Unconsciousness, if not induced by voluntary intoxication, is a complete defense
to a criminal charge. [Citations.] To constitute a defense, unconsciousness need not rise
to the level of coma or inability to walk or perform manual movements; it can exist
'where the subject physically acts but is not, at the time, conscious of acting.' [Citation.]
If the defense presents substantial evidence of unconsciousness, the trial court errs in

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refusing to instruct on its effect as a complete defense. [Citations.]" (People v.
Halvorsen (2007) 42 Cal.4th 379, __; 64 Cal.Rptr.3d 721, 753.) " ' "Substantial
evidence" in this specific context is defined as evidence which is "sufficient to 'deserve
consideration by the jury, i.e., "evidence from which a jury composed of reasonable men
could have concluded" ' that the particular facts underlying the instruction did exist."
[Citations.]' [Citation.]" (People v. Lemus (1988) 203 Cal.App.3d 470, 477.)
The record contains no substantial evidence that, when he committed the offenses,
appellant was unconscious due to involuntary intoxication with Prozac and prednisone.
Dr. Shipko testified that these drugs could cause mania and psychosis. He never testified
that they could cause appellant to become unconscious. Indeed, appellant told Dr. Shipko
that "he felt completely focused on the day he committed his crimes." Furthermore, on
cross-examination appellant testified that things were "crystal clear at the crime scene in
Ventura County."
"In sum, because [appellant] presented no substantial evidence he was
unconscious when he committed the offenses, the trial court did not err in refusing the
instructions on unconsciousness [induced by involuntary intoxication] as a complete
defense. [Citation.]" (People v. Halvorsen, supra, 42 Cal.4th at p. __; 64 Cal.Rptr.3d at
p. 754.)
Mental Competency Examination
Dr. Nightingale evaluated appellant as to his mental competency to stand trial.
(§ 1368.) Appellant contends that the trial court erred in permitting the prosecutor to
cross-examine Dr. Shipko concerning statements made by appellant to Dr. Nightingale.
The statements were contained in a report prepared by Dr. Nightingale. In forming his
opinion concerning appellant's mental condition, Dr. Shipko had considered this report.
"There is a rule of immunity for all statements and fruits of a mental competency
examination which prevents their use at the guilt trial. [Citations.]" (People v. Arcega
(1982) 32 Cal.3d 504, 518.) But because appellant did not object on this ground, the

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issue was not preserved for appellate review. (People v. Weaver (2001) 26 Cal.4th 876,
961.)
Even if appellant had objected on the ground that his statements to Dr. Nightingale
were inadmissible under the rule of immunity, the trial court would not have erred had it
overruled the objection. Because Dr. Shipko had considered Dr. Nightingale's report in
forming his opinion concerning appellant's mental condition, the rule of immunity did not
preclude cross-examination of Dr. Shipko on the contents of the report. (Evid. Code,
§ 721, subd. (a); People v. Combs (2004) 34 Cal.4th 821, 864.)
If appellant had wanted to preclude such cross-examination of Dr. Shipko, he
should have assured that the report was not made available to Dr. Shipko. (See In re
Hernandez (2006) 143 Cal.App.4th 459, 477 ["The fruit of the defendant's competency
evaluations, i.e., the competency expert's impressions, reports or the results of the
evaluator's testing, are not to be made available to experts appointed to testify on the
issues of the defendant's guilt, sanity, or penalty."].)
Limiting Instruction
Appellant contends that the trial court erred in failing to instruct the jury that
statements made by him to Dr. Nightingale could not be used to prove the truth of the
matters stated. But the trial court gave the following limiting instruction: "Dr. Shipko
testified that in reaching his conclusions as an expert witness, he considered statements
made by the defendant and his wife and Attorney Becker. You may consider those
statements only to evaluate the expert's opinion. Do not consider those statements as
proof that the information contained in the statements is true." Since Dr. Shipko testified
that he had considered Dr. Nightingale's report, which contained statements by appellant
to Dr. Nightingale, this instruction was sufficient to inform the jury that such statements
could not be considered as proof of the truth of the matters stated.
Moreover, appellant never objected to this instruction. If he believed that the
instruction was inadequate, he should have made his views known to the trial court. By

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failing to object, appellant waived the issue. (See People v. Holloway (2004) 33 Cal.4th
96, 132; People v. Burnett (2003) 110 Cal.App.4th 868, 875.)
Probation Report
Appellant contends that the trial court abused its discretion in refusing to strike
excerpts from the probation report stating that appellant had pointed a gun at deputy
sheriffs and had resisted arrest. The trial court did not abuse its discretion. These
statements are a matter of record. Deputy Harris saw appellant point a handgun "out the
passenger door window towards" Deputies Murray and Patterson. Deputy Coates saw
appellant raise his gun and point it in the "general direction" of other deputies. These
statements were not inconsistent with the jury verdicts. Although the jury acquitted
appellant of two counts of assault with a firearm upon a peace officer (§ 245, subd.
(d)(1)), it convicted him of exhibiting a firearm with the intent to resist arrest by a peace
officer. (§ 417.8.)
Prosecutorial Misconduct
A. Griffin Error
"In Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, the
United States Supreme Court held that the prosecution may not comment upon a
defendant's failure to testify in his or her own behalf." (People v. Bradford (1997) 15
Cal.4th 1229, 1339.) Here appellant voluntarily testified in his own behalf, but his
testimony on direct examination was limited to his taking prescription drugs. He did not
testify about the circumstances of the charged offenses, nor did his testimony constitute a
general denial of any of these offenses. Appellant waived his privilege against self-
incrimination only as to matters within the scope of relevant cross-examination. (People
v. Coffman (2004) 34 Cal.4th 1, 72.)
Appellant contends that, during closing argument, the prosecutor twice committed
Griffin error by commenting upon appellant's failure to testify on matters not within the
scope of relevant cross-examination. The first error allegedly occurred when the
prosecutor stated: "The defendant had an opportunity to get up on the stand and tell you

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anything he wanted to tell you about his plans to kidnap for ransom. He chose not to do
that. He chose only to testify about the fact that he had some medication and he brought
that to California with him." The second error allegedly occurred during rebuttal when
the prosecutor stated: "Nobody knows what [the fortune cookie] said. In fact, the
defendant took the stand and could have told us about that fortune cookie. He could have
told us what it said and what the significance of it was, but he didn't. And I submit to you
that there was no significance to the fortune cookie and that that is just ridiculous to base
an opinion on that."
Appellant concedes that his trial counsel did not object to the prosecutor's
comments. The claim of Griffin error was not preserved for appellate review. (People v.
Lancaster (2007) 41 Cal.4th 50, 84.)
Appellant maintains that by not objecting, he was denied the effective assistance
of counsel. "The burden of proving ineffective assistance of counsel is on the defendant.
[Citation.]" (People v. Babbitt (1988) 45 Cal.3d 660, 707.) "First, the defendant must
show that counsel's performance was deficient. . . . Second, the defendant must show
that the deficient performance prejudiced the defense." (Strickland v. Washington (1984)
466 U.S. 668, 687.) In determining whether counsel was deficient, we measure counsel's
performance "against the standard of a reasonably competent attorney . . . ." (People v.
Kipp (1998) 18 Cal.4th 349, 366.) "A defendant must prove prejudice that is a '
"demonstrable reality," not simply speculation.' [Citations.]" (People v. Fairbank (1997)
16 Cal.4th 1223, 1241.) "The defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
"[A] court need not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of

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lack of sufficient prejudice, . . . that course should be followed." (Strickland v.
Washington, supra,466 U.S. at p. 697.)
We need not consider whether counsel was deficient in not objecting to the
prosecutor's statements. Appellant has failed to "prove prejudice that is a ' "demonstrable
reality," not simply speculation.' [Citations.]" (People v. Fairbank, supra, 16 Cal.4th at
p. 1241.) The evidence against appellant was overwhelming. It is not reasonably
probable that the result would have been different if counsel had objected to the
prosecutor's comments and had sought a cautionary instruction to disregard them.
B. Remarks Concerning Qualification of Dr. Shipko
Appellant contends that the prosecutor "improperly told the jury [during closing
argument] that Dr. Shipko was not qualified to render an opinion in a criminal case."
(AOB 35) The remarks of which appellant complains were as follows: "He [Dr. Shipko]
certainly wasn't qualified to render an opinion in a criminal case and he was pretty up
front about that. He admitted that he has no experience whatsoever prior to this case in
forensic psychiatry. He had never evaluated a criminal with regard to his mental state.
He admitted that is a very specialized area of psychiatry . . . ."
Appellant failed to preserve this issue for appellate review because he did not
object to the prosecutor's remarks. (People v. Turner (2004) 34 Cal.4th 406, 422.) In any
event, the remarks were fair comment on the state of the evidence. The prosecutor was
indicating to the jury that it should not rely on Dr. Shipko's expert opinion because he had
no experience in forensic psychiatry and had not previously evaluated a defendant in a
criminal case. " ' "[A] prosecutor is given wide latitude during argument. The argument
may be vigorous as long as it amounts to fair comment on the evidence, which can
include reasonable inferences, or deductions to be drawn therefrom. [Citations.]" ' "
(People v. Ward (2005) 36 Cal.4th 186, 215.)
C. Character Evidence
The prosecutor played for the jury a recording of a telephone conversation
between appellant and Deputy Wollenzier, the crisis negotiator. During the conversation,

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Wollenzier asked appellant if he had a criminal record. Appellant responded that he had
a criminal record, but it had been "sealed . . . a long time ago." Appellant contends: "It
was misconduct to present evidence of appellant's character in the form of his prior
criminal conduct . . . ."
Appellant did not object to this portion of the conversation. He has therefore not
preserved the issue for appellate review. (People v. Demetrulias (2006) 39 Cal.4th 1,
20.) Appellant asserts that, because his counsel did not object, he was denied the
effective assistance of counsel. But appellant provides no argument in support of this
assertion. In the absence of such argument, he has failed to carry his burden of proving
ineffective assistance of counsel. (See People v. Babbitt, supra, 45 Cal.3d at p. 707.)
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
COFFEE, J.

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Herbert Curtis III, Judge
Superior Court County of Ventura
______________________________
Gilbert W. Lentz, under appointment by the Court of Appeal, for Defendant
and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D.
Martynec, Supervising Deputy Attorney General, Robert S. Henry, Deputy Attorney
General, for Plaintiff and Respondent.

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