California Court of Appeals, First District, First Division
April 7, 2015
PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent,
LAMAR JOHNSON, Defendant and Appellant. In re LAMAR JOHNSON, on Habeas Corpus.
[CERTIFIED FOR PARTIAL PUBLICATION] [*]
IT IS ORDERED that the written opinion filed on March 13, 2015,
235 Cal.App.4th 80;___ Cal.Rptr.3d ___, is modified by deleting section II.A.5. [235 Cal.App.4th 87, advance report, in the unpublished portion of the opinion] and replacing it with the following and the petition for rehearing is DENIED:
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 [20 Cal.Rptr. 321, 369 P.2d 937].)
This modification does not change the judgment. (Cal. Rules of Court, rule 8.264(c)(2).) The petition for rehearing is denied.