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Johnson v. King

United States District Court, N.D. California

July 11, 2017

LAMAR JOHNSON, Petitioner,
v.
AUDREY KING, Executive Director California Department of Mental Health, Respondent.

          ORDER DENYING PETITION AND DENYING CERTIFICATE OF APPEALABILITY

          William Alsup United States District Judge

         INTRODUCTION

         Petitioner filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254 challenging his civil commitment to Coalinga State Hospital pursuant to California's Sexually Violent Predators Act. See Cal. Welf. & Inst. Code § 6600, et seq. ("SVPA"). Respondent was ordered to show cause why the petition should not be granted. Respondent has answered, and petitioner has filed a traverse. For the reasons discussed below, the petition is Denied.

         STATEMENT

         I. SVPA Commitment Proceedings

         The SVPA authorizes the state to file a petition to civilly commit a person as a sexually violent predator (“SVP”), which is someone who (1) has been convicted of a sexually violent offense and (2) suffers from a diagnosed mental disorder that makes it likely that he will engage in sexually violent criminal behavior in the future. See Cal. Welf. & Inst. Code § 6600(a)(1). The commitment petition must be filed while the individual is still in custody under a determinate prison term, as a result of parole revocation, or under a special SVPA-authorized “hold” (§ 6601(a)(2)). After the petition is filed, the superior court must hold a probable cause hearing, and then a jury trial at which a unanimous jury must find beyond a reasonable doubt that the individual meets the criteria for an SVP (§§ 6602-03). Prior to 2006, an SVP was committed for a two-year term but could be recommitted to an unlimited number of sequential terms. In 2006, Proposition 83 was passed and now an SVP is committed to a state mental hospital for an indeterminate term but with yearly reviews of their mental condition by a mental health professional (§§ 6603(d), 6604, 6604.9(a)).

         An SVP can seek release: (1) if the Department of State Hospitals (DSH) determines that his or her 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” and recommends conditional release, and the trial court makes a finding of conditional release after a hearing; or (2) up to one time per year an SVP may petition the trial court for conditional release without DSH concurrence, and the court must hold a hearing if the petition is not frivolous (§§ 6607, 6608). The trial court determines conditional release based upon the same standard used for the initial commitment (§ 6608(g)). The burden is on the SVP to prove by a preponderance of the evidence that he meets that standard, i.e. that it is unlikely that he will “engage in sexually violent criminal behavior due to his or diagnosed mental disorder if under supervision and treatment in the community” (§ 6608(g), (k)). However, if the DSH issues a report recommending conditional release, then the burden is on the state to prove by a preponderance of the evidence that the SVP should not be released (ibid.).

         II. Petitioner's Commitment Proceedings

         In 1984, petitioner pleaded guilty to assault with intent to commit rape of a 24-year-old woman. Before he was sentenced, in yet another crime he raped a 15-year-old girl and later pled guilty to statutory rape. He was imprisoned for these two crimes and released on parole in 1985. In 1992, he was convicted of two counts of rape, assault with intent to commit sodomy, forcible oral copulation, and assault with intent to commit rape. He was sentenced to a term of 36 years in state prison. After serving over 17 years, his date for release on parole was set for June 28, 2011.

         Before petitioner's release from prison, prosecutors petitioned for his civil commitment as an SVP. At a jury trial in 2012, four psychologists testified as experts. The state's experts, Drs. Padilla and D'Orazio diagnosed petitioner with “paraphilia not otherwise specified with non-consenting persons, ” also known as “para philic coercive disorder.” This disorder is marked by sexual arousal or gratification involving nonconsenting persons persistent over a six-month period. The experts diagnosed petitioner with this disorder because of the number of petitioner's offenses over a lengthy period of time, the similar modus operandi, the fact that a consenting partner was available to him, he showed quick recidivism when he was not in custody, and his continued arousal while the victims resisted. Based upon a statistical analysis, they predicted a 21 to 28 percent chance that he would commit another sexual offense within 10 years if released into the community. Petitioner's first expert, Dr. Abbot, testified that the existence of paraphilic coercive disorder was rare and there was no consensus as to its definition in the psychology community. Dr. Abbot opined that petitioner did not have the disorder and instead was an “anger” rapist, that there was a six percent chance he would re-offend if released, and that he did not pose a well-founded risk he would re-offend. Dr. Heard testified for petitioner as well. He testified that paraphilic coercive disorder did not exist, that petitioner raped out of anger, and that he did not have a mental disorder that would compel him to re-offend. He estimated based upon petitioner's age less than a seven percent chance that he would re-offend if released into the community.

         Following the jury's verdict, petitioner's appeal and habeas petitions to the California Court of Appeal were denied in a joint opinion that was published in part. His petition for review to the California Supreme Court was summarily denied.

         ANALYSIS

         I. Standard of review

         Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.§ 2254(a). The petition may not be granted with respect to any claim adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in ...


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