California Court of Appeals, First District, First Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
San Mateo County Superior Court Trial Judge: Honorable Robert Atack San Mateo County Super. Ct. No. CIV-506664
[Copyrighted Material Omitted]
Michele Kemmerling, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Lawrence K. Sullivan and Bridget Billeter, Deputy Attorneys General, for Plaintiff and Respondent.
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 corpus 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 corpus 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 State 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, subd. (a).) 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 ...