Welfare and Institutions Code §§ 6603 (d) and 6604 detail the basis upon which one may be found to be a sexually violent predator (SVP) and what happens once someone is so designated.
The statute states to be designated an SFP, a person must be found by a unanimous jury beyond a reasonable doubt to have been convicted of a sexually violent offense against one or more victims. The jury must also find that the person has a mental disorder diagnosed that makes the person a danger to the health and safety of others because it is likely he or she will again engage in sexually violent criminal behavior. Such a trial ordinarily takes place just before a person finishes his sentence, not before it starts.
Once this is found, the judge must order the person committed to a state mental facility, however, the individual is entitled to have their mental condition examined once per year for possible release. If the report says the person’s mental condition has “so changed” that the person is no longer likely to commit acts of predatory sexual violence “while under supervision and treatment in the community, “the trial court will conduct a hearing on the person’s conditional release.”
The person may also petition the judge for a conditional release without the Department of State Hospital’s Medical report. When the judge receives this, as may be understood, the judge may review the petition to see if it frivolous or if it has merit. If the judge decides that it is frivolous, the judge can deny the petition without even a hearing.
If the judge determines the petition is not frivolous, the judge must conduct a hearing. If the petition is then denied, the person may not repetition the court for another year.
At such a hearing, the person seeking conditional release must prove by a preponderance of the evidence that conditional release “is appropriate.”
These procedures and standards are best understood and appreciated by considering the case of Lamar Johnson and his appeal of a commitment order following a jury trial after he served seventeen years of a thirty-six year state prison sentence.
In 1983, he was arrested for assault with intent to commit rape of a 24 year-old female (Penal Code §§ 220 and 261). While he was awaiting sentencing for that crime, he raped a 15-year- old who lived in his apartment complex (Penal Code § 261.5).
He served time in prison for these crimes, but after being released in 1985, he committed another sexual assault in 1992. For this 1992 offense, he was convicted of two counts of rape (Penal Code § 261(a)) and forcible oral copulation (Penal Code § 220, 261). He was then sentenced to thirty-six years in prison.
The day before his release, the San Mateo County District Attorney filed a petition to have Johnson committed to a state mental hospital as a sexually violent predator (SVP).
At the trial regarding whether Johnson was an SVP, two experts for the State of California testified that Johnson was diagnosed with chronic paraphilic coercive disorder. This means he was sexually aroused or gratified when involved with a non-consenting person. The doctors further testified that Johnson was not motivated by the sex, but by his anger toward women, which he expressed in a violent manner.
The State’s experts also testified that Johnson fell into a high-risk group for reoffending. The expert estimated that Johnson had a 15.8% chance of recommitting a sexually violent offense over the next ten years.
The jury unanimously found Johnson to be an SVP and the trial judge ordered an indeterminate commitment to a state mental hospital.
Johnson appealed his commitment on five grounds. The appeal was filed in the First Appellate District court, which denied the appeal at 2015 DJDAR 2995. The most significant grounds for his appeal, we think, is that the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM), the most authoritative resource on mental diagnosis, does not even allude to the psychiatric diagnosis upon which he was committed.
In other words, the judge sent him to a state mental hospital for a mental condition that is not even recognized as a mental diagnosis. The appellate court responded by noting that the State was not required to prove a recent act to establish that Johnson suffered from paraphilic coercive disorder. It pointed out that one expert even testified that it was unlikely that people who suffer from the disorder will act out in a prison environment and the disorder can manifest itself again after a latent period. The doctor further testified that the disorder can be managed, but not cured. The court found it important that Johnson even denied committing rape, which impedes effective management of the disorder.
The appellate court therefore denied the appeal.
For more information about the issues in this article, click on the following articles:
- Court Upholds Law Requiring Sexually Violent Predator to Report Whereabouts at Local Police Station Every 90 Days.
- What Convictions Require Registration as a Sex Offender under Penal Code § 290?
- Lifetime Requirement to Register as Sex Offender Not Eliminated When Felony Conviction Reduced to Misdemeanor