California Court of Appeals, First District, First Division
CERTIFIED FOR PARTIAL PUBLICATION[*]
ORDER FILE DATE APRIL 7, 2015
Superior Court of San Mateo County, No. CIV-506664 Honorable Robert Atack Judge
Counsel for Appellant: Michele Kemmerling, under appointment by the First District Appellate Project
Counsel for Respondent: Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Lawrence K. Sullivan, Supervising Deputy Attorney General, Bridget Billeter, Deputy Attorney General
ORDER MODIFYING OPINION AND DENYING REHEARING
It is ordered that the written opinion filed on March 13, 2015, is modified by deleting section II.A.5. and replacing it with the following:
5. Johnson’s ex post facto, double jeopardy, and due process challenges are barred by our state Supreme Court precedent.
Johnson asserts that the SVPA is punitive in intent and effect and thus runs afoul of the ex post facto and double jeopardy clauses of the United States Constitution. He also argues the statute violates SVPs’ due process rights by impermissibly shifting the burden to them to prove release from indeterminate commitment is appropriate. Johnson concedes that our state Supreme Court rejected these same arguments in McKee I, supra, 47 Cal.4th at pp. 1188-1195, but he states that he wishes to preserve the arguments in the event he seeks federal habeas relief. Given controlling Supreme Court precedent, his claim fails. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
This modification does not change the judgment. (Cal. Rules of Court, rule 8.264(c)(2).) The petition for rehearing is denied.
Lamar Johnson was involuntarily committed to a state mental hospital after a jury found him to be a sexually violent predator (SVP). He appealed, and he later filed two petitions for a writ of habeas corpus. We consolidated the actions after issuing orders to show cause. In his appeal, Johnson argues (1) insufficient evidence supports the jury’s determination that he is an SVP; (2) the jury was improperly instructed on the burden of proof; and (3) the Sexually Violent Predator Act (the SVPA or Act) is unconstitutional. In both habeas petitions, he argues that his commitment must be vacated because the newest edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM), a manual published by the American Psychiatric Association to identify criteria for the classification of mental disorders, does not allude to the psychiatric diagnosis upon which his commitment was based: “paraphilia[, ] not otherwise specified, ... with non-consenting persons.” We reject these arguments, affirm the judgment, and in the published portion of our decision deny the habeas petitions.
A. The Statutory Background.
Under the SVPA, a person who is found to be an SVP beyond a reasonable doubt by a unanimous jury may be involuntarily committed to a state mental hospital for an indefinite term. (§§ 6603, subd. (d), 6604.) The statute defines an SVP as “a person who has been convicted of a sexually violent offense against one or more victim and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” (§ 6600, subd. (a)(1).)
SVPs are entitled to have their mental condition examined once per year (§ 6604.9, subd. (a)), and they can obtain release in two ways. First, if the Department of State Hospitals (DSH) determines that the SVP’s diagnosed mental disorder “has so changed that the person is not likely to commit acts of predatory sexual violence while under supervision and treatment in the community, ” the DSH must forward a report and recommendation for conditional release, and the trial court must set a hearing to consider conditional release. (§ 6607.) Second, the SVP may petition the court for a conditional release with or without the concurrence of the DSH. (§ 6608, subd. (a).) Upon receiving a petition filed without the DSH’s concurrence, the court “shall endeavor whenever possible to review the petition and determine if it is based upon frivolous grounds and, if so, shall deny the petition without a hearing.” (Ibid.) If the court determines the petition is not frivolous, it must set a hearing. (§ 6608, subds. (b)(1) & (4), (c)(1).) If the SVP’s petition is denied, the SVP may not file a new application until one year has elapsed from the date of the denial. (§ 6608, subd. (j).)
At a hearing to consider an SVP’s conditional release, the trial court must determine whether “it is likely that [the committed person] will engage in sexually violent criminal behavior due to his or her diagnosed mental disorder if under supervision and treatment in the community.” (§ 6608, subd. (g).) Ordinarily, the burden is on the SVP to prove by a preponderance of the evidence that conditional release is appropriate. (§ 6608, subd. (k).) But when the DSH issues a report stating that “conditional release to a less restrictive alternative is in the best interest of the person and that conditions can be imposed that would adequately protect the community, ” the burden is on the state to prove by a preponderance of the evidence that conditional release is not appropriate. (Ibid.)
Not surprisingly, the constitutionality of the SVPA and other states’ civil-commitment schemes has been challenged. Our state Supreme Court has upheld the SVPA against due process and equal protection challenges, and it did so by adopting the same analysis that applies under the United States Constitution. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1152, fn. 19.) Under both the federal and state Constitutions, a finding of dangerousness alone is insufficient to justify an involuntary commitment. (Kansas v. Hendricks (1997) 521 U.S. 346, 356-357 (Hendricks); see Hubbart, at p. 1152, fn. 19.) Rather, a state can only involuntarily commit someone who has a “serious mental illness, abnormality, or disorder” that separates the person “from the dangerous but typical recidivist convicted in an ordinary criminal case.” (Kansas v. Crane (2002) 534 U.S. 407, 413 (Crane).) “If... civil confinement were to become a mechanism for retribution or general deterrence, or if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, our precedents would not suffice to validate it.” (Hendricks, at p. 373 (conc. opn. of Kennedy, J.); see also Crane, at p. 412.)
B. The Factual Background.
Between 1983 and 1992, Johnson committed sexually violent offenses against three victims. In 1984, he pleaded guilty to one count of assault with intent to commit rape (Pen. Code, §§ 220, 261) of a 24-year-old female. While he was awaiting sentencing for that crime, he raped a 15-year-old girl who lived in his apartment complex, and he later pleaded to unlawful sexual intercourse with a minor (Pen. Code, § 261.5). He served time in prison for those two convictions but was released on parole in May 1985. In March 1992, Johnson sexually assaulted yet another woman, and he was subsequently convicted of two counts of rape (Pen. Code, § 261, subd. (a)) and one count each of assault with intent to commit sodomy (Pen. Code, §§ 220, 286), forcible oral copulation (Pen. Code, § 288a), and assault with intent to commit rape (Pen. Code, §§ 220, 261). He was sentenced to state prison for 36 years and remained incarcerated for over 17 years, but he was scheduled to be released on parole on June 28, 2011.
The day before Johnson’s scheduled release date, the San Mateo County District Attorney petitioned to have Johnson committed to a state hospital as an SVP. A jury trial ensued, and four psychologists testified as experts: Deirdre D’Orazio, Ph.D., and Jesus Padilla, Ph.D., testified for the state, and Brian Abbott, Ph.D., and Christopher Heard, Ph.D., testified for Johnson.
The state’s experts, Drs. D’Orazio and Padilla, diagnosed Johnson with “paraphilia[, ] not otherwise specified, ... with non-consenting persons.” We shall follow the lead of at least one of the experts who testified below and will refer to this diagnosis as “paraphilic coercive disorder.” The state’s experts relied on several factors in forming the diagnosis, and they generally described it as marked by sexual arousal or gratification involving nonconsenting persons persisting over a six-month period. Johnson did not object to the introduction of this testimony, and his counsel cross-examined both doctors.
Johnson’s experts disagreed with the state’s experts about Johnson’s diagnosis. Dr. Abbott testified that, although it can be a valid diagnosis, paraphilic coercive disorder is very rare, was not listed in the then-current edition of the DSM, and is controversial within the scientific community. He opined that Johnson does not have the disorder, and he questioned the factors relied upon by the state’s experts in diagnosing Johnson with it. Dr. Heard testified that paraphilic coercive disorder does not exist and that an overwhelming majority of psychologists and psychiatrists has rejected it as a valid diagnosis. He further testified that, even if the disorder does exist, there is no consensus on its definition or diagnosis, and none of the factors on which the state’s experts relied to diagnose Johnson with the disorder had been validated by research. Dr. Heard opined that Johnson was motivated not by paraphilia but by anger toward women, which he expressed in a violent, antisocial manner.
The edition of the DSM current at the time of Johnson’s trial was the text revision of the fourth edition, published in 2000. It states that “[t]he essential features of a Paraphilia are recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving 1) nonhuman objects, 2) the suffering or humiliation of oneself or one’s partner, or 3) children or other nonconsenting persons that occur over a period of at least 6 months.” This edition of the DSM identifies eight classifications of paraphilia and also references a residual category, “Paraphilia Not Otherwise Specified, ” which includes paraphilias that are less frequently encountered. The state’s experts asserted that paraphilic coercive disorder falls within this residual category. After the trial, the American Psychiatric Association published a fifth edition of the ...