1

Filed 4/7/15 (unmodified opn. attached) 

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION ONE 

PEOPLE OF THE STATE OF 

CALIFORNIA, 

 Plaintiff and Respondent, 

v. 

LAMAR JOHNSON, 

 Defendant and Appellant. 

 A136573 

 (San Mateo County 

 Super. Ct. No. CIV-506664) 

In re LAMAR JOHNSON, 

 on Habeas Corpus. 

 A140310, A143775 

 ORDER MODIFYING OPINION 

AND DENYING REHEARING 

 [NO CHANGE IN JUDGMENT] 

THE COURT: 

 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 

 

*

 Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of part II.A. 
2

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. 

Dated:________________________ ___________________________P.J. 
3

Trial Court: San Mateo County Superior Court 

Trial Judge: Honorable Robert Atack 

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 
1

Filed 3/13/15 (unmodified version) 

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION ONE 

PEOPLE OF THE STATE OF 

CALIFORNIA, 

 Plaintiff and Respondent, 

v. 

LAMAR JOHNSON, 

 Defendant and Appellant. 

 A136573 

 (San Mateo County 

 Super. Ct. No. CIV-506664) 

In re LAMAR JOHNSON, 

 on Habeas Corpus. 

 A140310, A143775 

 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)1

 is unconstitutional. 

In both habeas petitions, he argues that his commitment must be vacated because the 

 

*

 Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of part II.A. 

1

 Welfare and Institutions Code, section 6600 et sequitur. All statutory references 

are to the Welfare and Institutions Code unless otherwise specified. 
2

newest edition of the Diagnostic and Statistical Manual of Mental Disorders2

 (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 nonconsenting persons.” We reject these arguments, affirm the judgment, and in the 

published portion of our decision deny the habeas petitions. 

I. 

BACKGROUND

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.”3 

(§ 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 

 2 American Psychiatric Association, Diagnostic and Statistical Manual of Mental 

Disorders (5th ed. 2013) (sometimes referred to as the DSM-5). 

3

 As originally enacted (Stats. 1995, ch. 763, § 3), the SVPA set a two-year term 

of involuntary confinement that could be extended. (Former §§ 6600, subd. (a), 6604.) 

In 2006, California voters passed Proposition 83, which changed the term to be an 

indefinite period of commitment. (People v. McKee (2010) 47 Cal.4th 1172, 1183-1184 

(McKee I).) In addition, although it originally required an SVP to have committed 

sexually violent offenses against two or more victims, the Act now requires only one 

victim. (§ 6600, subd. (a)(1).) 
3

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’ civilcommitment 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. 
4

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 
5

object to the introduction of this testimony, and his counsel cross-examined both 

doctors.4

 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 2000.5

 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 

 4

 The state’s experts also diagnosed Johnson with substance dependence and a 

personality disorder marked by narcissistic and antisocial traits. The Attorney General 

does not argue that these diagnoses provide an independent basis for Johnson’s 

commitment. 

5 American Psychiatric Association, Diagnostic and Statistical Manual of Mental 

Disorders (4th ed., text rev. 2000) (sometimes referred to as the DSM-IV-TR). 

Throughout this opinion, references to the fourth edition of the DSM are to the text 

revision of the fourth edition unless otherwise indicated. 
6

paraphilic coercive disorder falls within this residual category. After the trial, the 

American Psychiatric Association published a fifth edition of the DSM. The fifth 

edition’s description of paraphilia does not reference “nonconsenting persons” as did the 

fourth edition’s, and the fifth edition does not otherwise allude to paraphilic coercive 

disorder.6

 The experts also disagreed about Johnson’s risk of engaging in sexual violence if 

released. To assess Johnson’s risk of reoffense, Dr. D’Orazio used the Static-99R, an 

actuarial instrument based on studies of known sex offenders that identifies factors 

related to reoffense. Dr. D’Orazio also used another instrument, the Structured Risk 

Assessment, Forensic Version, to select a reference group for Johnson and place his 

Static-99R score in context. Based on these two instruments, Dr. D’Orazio concluded 

that he falls into a high-risk group and has characteristics in common with men who have 

reoffended at a rate of 21 to 28 percent over a 10-year period. Dr. Padilla also used the 

Static-99R, as well as factors listed in another guided clinical assessment instrument, the 

Stable-2007, to estimate that Johnson had a 15.8 percent risk of recidivism over the next 

five years and a 24.3 percent chance of recidivism over the next ten years. 

 Johnson’s experts testified that his risk of reoffense was lower. Although, as did 

the state’s experts, Dr. Abbott used the Static-99R, he concluded that Johnson fell into 

the “routine corrections offender group,” which has a six percent chance of reoffense 

over a five-year period, with the chance declining about two to four percent per year. 

Unlike Dr. D’Orazio, Dr. Abbott did not use the Structured Risk Assessment, Forensic 

Version to select a reference group, stating the instrument was experimental, and its 

reliability has never been tested. Dr. Heard testified that the current rate of sexual 

 6

 Prior to trial, the state moved to exclude any reference to the fifth edition of the 

DSM, which was in draft form at that time. The trial court granted the motion over an 

objection by Johnson that the exclusion would prevent him from adequately crossexamining the state’s experts regarding the validity of the diagnosis of paraphilic 

coercive disorder. The court reasoned that the draft DSM had not yet been adopted and 

was subject to change. On appeal, Johnson does not argue that this ruling provides an 

independent basis for reversal. 
7

reoffense in the United States is seven percent and that Johnson’s risk was lower than that 

due to his age and declining sex drive. Dr. Heard did not use any sort of instrument or 

actuarial tool because he does not believe they provide accurate results. 

 The jury unanimously found Johnson to be an SVP, and the trial court imposed an 

indeterminate commitment. Johnson then filed a motion to strike the indeterminate 

commitment and to be given a two-year commitment instead, asserting that being held 

indefinitely would violate his constitutional rights. The court denied the motion. 

II. 

DISCUSSION

 A. Johnson’s Appeal. 

 Johnson appeals his commitment on five grounds: (1) insufficient evidence was 

presented to find that he is an SVP; (2) the trial court erred in instructing on the state’s 

burden of proof; (3) the court erred by refusing to instruct that he should be presumed not 

to be an SVP; (4) the SVPA violates his equal protection rights; and (5) the SVPA 

violates the ex post facto and double jeopardy clauses of the United States Constitution. 

We discuss each of these arguments in turn. 

 1. The jury’s determination that Johnson is an SVP is supported by 

substantial evidence.

Johnson contends there was insufficient evidence to support the jury’s finding that 

he is an SVP because the state’s experts failed to base their diagnoses on current 

psychological symptoms or behaviors and relied upon factors that were contradicted by 

undisputed facts.7

 He also argues that the state failed to show that he is likely to commit 

sexually violent offenses in the future. We are not persuaded. 

 In considering Johnson’s challenge to the sufficiency of the evidence, we apply 

the familiar substantial-evidence standard. (In re Ryan D. (2002) 100 Cal.App.4th 854, 

 7

 Johnson does not contend that the state’s experts were unqualified or that their 

testimony on the existence of paraphilic coercive disorder was improperly introduced. 

Nor could he, since he did not object below to these experts’ qualifications or testimony. 

(See People v. Dowl (2013) 57 Cal.4th 1079, 1089 [substantial-evidence challenge based 

on expert’s alleged inadequate qualifications is forfeited on appeal when defendant does 

not object to qualifications below].) 
8

859.) In doing so, we must consider the entire record in the light most favorable to the 

judgment to determine whether it contains reasonable, credible, and solid evidence 

supporting the decision. “When the circumstances reasonably justify the jury’s findings, 

a reviewing court’s opinion that the circumstances might also be reasonably reconciled 

with contrary findings does not warrant reversal of the judgment.” (People v. Mendoza

(2011) 52 Cal.4th 1056, 1069.) 

 As previously discussed, to establish that a person is an SVP, the state must prove 

that the person was convicted of a sexually violent offense against one or more victim 

and suffers from a currently diagnosed mental disorder that makes him or her a danger to 

the health and safety of others because it makes him or her likely to engage in sexually 

violent criminal behavior. (See § 6600, subd. (a).) To show that a person is a danger, the 

state need not offer “proof of a recent overt act while the offender is in custody.” 

(§ 6600, subd. (d).) But it does need to show “ ‘recent objective indicia of the 

defendant’s condition’ and ‘a recent objective basis for a finding that an inmate is likely 

to reoffend.’ ” (People v. Buffington (1999) 74 Cal.App.4th 1149, 1161.) 

Johnson argues that insufficient evidence was presented to establish that he 

currently suffers from a diagnosed mental disorder making him a danger to others. 

Although he recognizes that the state’s experts testified that he has paraphilic coercive 

disorder, he argues that their opinions were unsupported because they were based on his 

decades-old convictions. He contends that no evidence postdating his last offense in 

1992 was presented to show he has a mental disorder. He points out that he has never 

been found with pornography depicting coercive sex and has made no statements 

reflecting an urge to engage in it. He also points out that his wife testified that the 

couple’s sex life was normal. 

But the state was not required to prove a recent overt act to establish that Johnson 

suffers from paraphilic coercive disorder. (§ 6600, subd. (d).) And the state’s experts 

testified that Johnson has the disorder, not simply that he had it years ago. Dr. D’Orazio 

testified it is unlikely that people who suffer from paraphilic coercive disorder will act 

out in a prison environment, and the disorder can manifest again after a latent period. 
9

Dr. Padilla testified that paraphilic coercive disorder is typically a chronic disorder that 

can be managed but not cured. He also testified that Johnson denied committing rape, 

and denial impedes effective management of the disorder.8

Furthermore, Drs. D’Orazio’s and Padilla’s diagnoses were based on factors other 

than Johnson’s convictions. The experts considered (1) the collective number of 

Johnson’s coercive sex acts; (2) the long pattern of his sexual violence, as evidenced by 

the length of time between the 1983 and 1992 offenses; (3) the rapidity with which 

Johnson reoffended after the first conviction; (4) his ability to sustain sexual arousal 

despite the distress and resistance of his victims; (5) his use of a higher level of force than 

necessary to gain compliance; (6) the availability of consensual sexual partners, 

indicating his preference for forcible sex; and (7) his advance planning of the assaults. 

The jury could have reasonably accepted the state’s experts’ testimony that these factors 

support a conclusion that Johnson suffers from a chronic disorder that renders him a 

continuing danger to others. (See People v. McCloud (2013) 213 Cal.App.4th 1076, 1090 

[even though defendant did not exhibit difficulty controlling behavior in custody, state’s 

experts’ explanation that paraphilic coercive disorder is chronic and generally does not 

abate without intervention was substantial evidence of defendant’s inability to control 

behavior].) 

Johnson argues that some of the factors relied upon by the state’s experts were 

improperly applied to him.9

 According to him, the third factor—rapidity of reoffense—

 8

 Johnson claims that he has now accepted full responsibility for his actions. The 

jury, however, had reason to be doubtful. Johnson testified that he said the following to 

Dr. D’Orazio about raping his third victim: “I didn’t know how to have remorse for a 

crime I felt like I may have not committed.” When asked if he still felt that way, Johnson 

testified that he had since decided that, even though he did not remember the incident, his 

third victim’s account of the rape was correct. This testimony hardly reflects a rousing 

acceptance of responsibility. In any event, as a reviewing court we cannot second-guess 

the jury’s credibility determinations. (People v. Verdugo (2010) 50 Cal.4th 263, 308.) 

9

 Johnson briefly argues that the factors relied upon by the state’s experts have not 

“been validated by peer-reviewed studies.” But Drs. D’Orazio and Padilla testified that 

the factors were based on their understanding of the disorder and were supported by 
10

was not shown because, although his first two offenses occurred in close proximity, his 

third offense did not occur until eight years after the second offense. But he was 

incarcerated for several years during this period, and he presumably had limited 

opportunity to reoffend during it. He also argues that the fourth factor—an ability to 

sustain sexual arousal despite a victim’s distress—was countered with evidence that he is 

able to sustain arousal with consenting sexual partners. Dr. Padilla, however, testified 

that people who have paraphilic coercive disorder can and do have consensual sex. In 

any event, the state’s experts never testified that each and every identified factor must be 

present to diagnose paraphilic coercive disorder. Accordingly, even if we decided that a 

particular factor lacked evidentiary support, we would not necessarily be able to conclude 

that the jury’s determination was unsupported. 

 Johnson also maintains that insufficient evidence was presented that he is likely to 

reoffend. According to him, the Static-99R, the actuarial instrument administered by the 

state’s experts, shows that he has a low-to-moderate risk of recidivism. He asserts that 

the state’s experts should have stopped there, but instead proceeded improperly to 

interpret his Static-99R results using additional, unvalidated instruments, including the 

Structured Risk Assessment, Forensic Version and Stable 2007, which he argues showed 

an inappropriately high risk of reoffense. He also argues that he committed the offenses 

due to unresolved anger issues and that there is no evidence that these same motivations 

drive him today. 

These arguments are unconvincing. To begin with, Johnson had, and exercised, 

the opportunity to introduce contrary testimony from his own experts explaining the 

weaknesses in the state’s theories. The jury heard evidence from Drs. Abbott and Heard 

that the Structured Risk Assessment, Forensic Version and the Stable 2007 were 

unreliable, but it apparently found that testimony unpersuasive. Johnson also exercised 

the opportunity to cross-examine the state’s experts about the Static-99R and the other 

bases of their opinions. (See Evid. Code, § 721, subd. (a).) 

 

literature in the field and, as we previously mentioned, Johnson did not contest their 

expert qualifications. 
11

We recognize that all of the experts calculated Johnson’s risk of reoffending to be 

less than 50 percent. But whether a person is likely to reoffend is not a strictly 

mathematical determination. (People v. Superior Court (Ghilotti ) (2002) 27 Cal.4th 888, 

921.) Even though the SVPA’s phrase “ ‘likely to engage in acts of sexual violence’ . . . 

connotes much more than the mere possibility that the person will reoffend . . . [,] the 

statute does not require a precise determination that the chance of reoffense is better than 

even. Instead, an evaluator applying this standard must conclude that the person is 

‘likely’ to reoffend if, because of a current mental disorder which makes it difficult or 

impossible to restrain violent sexual behavior, the person presents a substantial danger, 

that is, a serious and well-founded risk, that he or she will commit such crimes if free in 

the community.” (Id. at p. 922, italics omitted.) 

The question for us is whether there was substantial evidence upon which the jury 

could have found that Johnson was likely to reoffend. We conclude there was. First, 

Johnson’s history of sexual violence is, in and of itself, meaningful evidence of a 

potential likelihood of reoffending. (See Hendricks, supra, 521 U.S. at pp. 357-358 

[“ ‘[p]revious instances of violent behavior are an important indicator of future violent 

tendencies’ ”].) Second, the state’s experts found that Johnson shares characteristics with 

a group of others who have a high risk of reoffense. Third, the record shows that the 

experts relied upon scientific assessment tools in making their diagnoses and in 

evaluating the risk of reoffense, and they explained the factors they considered to be 

relevant. It was up to the jury to decide what weight to give the expert opinions. (See In 

re Scott (2003) 29 Cal.4th 783, 823-824.) 

 Ultimately, Johnson merely asks us to reweigh the evidence, something that we as 

an appellate court cannot do. (See People v. Lindberg (2008) 45 Cal.4th 1, 27.) The 

state’s experts here testified at length about the bases of their diagnoses and relied on 

DSM diagnostic criteria and other actuarial tools designed to predict the risk of reoffense. 

And Johnson was able to cross-examine the state’s witnesses and present his own expert 

testimony on these issues. “Any professional debate over the viability and reliability of 

[paraphilic coercive disorder] is subject to the adversarial process which, by vigorous 
12

cross-examination, would ‘expose the strengths and weaknesses of the professional 

medical opinions offered’ in reaching a considered legal determination as to whether a 

respondent suffers a mental abnormality . . . .” (State v. Shannon S. (N.Y. 2012) 

980 N.E.2d 510, 514; but see generally State v. Donald DD. (N.Y. 2014) 21 N.E.3d 239.) 

Although an expert’s opinion cannot be based on guess, surmise, or conjecture, we 

cannot conclude on this record that the state’s experts’ opinions were so based. 

(Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1110; see also 

People v. Stoll (1989) 49 Cal.3d 1136, 1154 [“No precise legal rules dictate the proper 

basis for an expert’s journey into a patient’s mind to make judgments about his 

behavior”].) We conclude that substantial evidence supports the jury’s finding that 

Johnson is an SVP. 

2. The jury was properly instructed on the state’s burden of proof. 

 Johnson argues that the trial court’s instruction on the burden of proof violated his 

due process rights. Specifically, he challenges the use of CALCRIM No. 3454, which, as 

given, provided in relevant part: “The petition alleges that Lamar Johnson is an SVP. To 

prove this allegation, the People must prove beyond a reasonable doubt that [1] he has 

been convicted of committing sexually violent offenses against one or more 

victims[; 2] [h]e has a diagnosed mental disorder[;] and [3] as a result of that diagnosed 

mental disorder, he is a danger to the health and safety of others because it is likely that 

he will engage in sexually violent predatory criminal behavior. [¶] . . . [¶] The likelihood 

that the person will engage in such conduct does not have to be greater than 50 percent.” 

 Johnson argues that the instruction’s statement on the likelihood of reoffense 

confused the jury about the state’s burden of proof. According to him, the statement 

suggested that the state’s burden was less than a preponderance of the evidence when it 

was actually proof beyond a reasonable doubt. The Attorney General responds that 

Johnson forfeited the issue by failing to raise it below and that the instruction was proper 

in any event. 

 We begin by rejecting the Attorney General’s forfeiture argument. We recognize 

that a party’s failure to request a clarifying instruction generally forfeits that claim on 
13

appeal. (People v. Young (2005) 34 Cal.4th 1149, 1202-1203.) But, “[e]ven in the 

absence of a request, a trial court must instruct on general principles of law that are 

commonly or closely and openly connected to the facts before the court and that are 

necessary for the jury’s understanding of the case.” (People v. Mayfield (1997) 

14 Cal.4th 668, 773.) Moreover, a failure to object to an instruction does not result in a 

forfeiture when the alleged error affects the defendant’s “substantial rights.” (People v. 

Anderson (2007) 152 Cal.App.4th 919, 927.) We conclude that there was no forfeiture 

here because a clear statement of the state’s burden of proof was necessary for the jury’s 

understanding of the case and because an instruction improperly reducing the state’s 

burden of proof would impact Johnson’s substantial rights. 

 Turning to the merits of the argument, we observe that the Sixth District Court of 

Appeal rejected an identical challenge to a similar instruction in People v. Hubbart

(2001) 88 Cal.App.4th 1202. The court reasoned that the instruction “d[id] not state or 

imply that the phrase ‘likely that he will engage in sexually violent criminal behavior’ is 

the standard of proof for the ultimate SVPA determination.” (Id. at p. 1233.) It also 

observed that the instructions “provide[d] a detailed definition of the phrase ‘reasonable 

doubt,’ thereby further emphasizing that reasonable doubt is the standard the jury must 

apply.” (Ibid.) The court concluded that “any reasonable jury would be entirely capable 

of separating the criteria of finding it ‘likely’ that the person will engage in sexually 

violent criminal behavior from the standard of proof of ‘beyond a reasonable doubt.’ ” 

(Ibid.) 

 Johnson contends that People v. Hubbart, supra, 88 Cal.App.4th 1202 was 

wrongly decided, arguing that a typical juror would not understand that the reasonable 

doubt standard is higher than a preponderance of the evidence. We disagree. “We 

must . . . assume that the jurors are intelligent persons and capable of understanding and 

correlating all jury instructions which are given.” (People v. Yoder (1979) 

100 Cal.App.3d 333, 338.) As the trial court instructed the jury on the meaning of proof 

beyond a reasonable doubt, we must assume that the jurors understood the difference 

between that standard and the standard applicable to the likelihood that Johnson would 
14

reoffend. Considering the jury instructions as a whole and reading the challenged 

instruction in context, we conclude there is no “reasonable likelihood the jury applied the 

challenged instruction in an impermissible manner.” (People v. Wilson (2008) 44 Cal.4th 

758, 803.) 

 3. A jury instruction on the presumption of innocence was not required. 

Johnson argues that the trial court improperly excluded references to the 

presumption of innocence and erred in refusing to instruct the jury that he was presumed 

not to be an SVP. Again, we disagree. 

At trial, the state moved to exclude any reference to a presumption that Johnson is 

not an SVP. The trial court granted the motion, rejecting Johnson’s argument that the 

SVPA and the California Constitution required an instruction that he is presumed not to 

be an SVP until proven otherwise. 

The trial court’s ruling was predicated on People v. Beeson (2002) 99 Cal.App.4th 

1393 (Beeson), in which the defendant challenged his continued involuntary commitment 

as a mentally disordered offender (MDO) under the MDO Act, Penal Code section 2960 

et sequitur. In Beeson, the court held that the federal and state Constitutions do not 

“require a presumption-of-innocence-like instruction” in MDO proceedings. (Id. at 

pp. 1409-1411.) The court reasoned that civil commitment proceedings do not implicate 

the constitutional rights afforded to criminal defendants and that “the risk of error is 

qualitatively different in the context of a civil commitment hearing” (id. at p. 1407) 

because the “ ‘layers of professional review and observation of the patient’s condition . . . 

provide continuous opportunities for an erroneous commitment to be corrected.’ ” (Id. at 

p. 1410, quoting Addington v. Texas (1979) 441 U.S. 418, 428-429.) The court 

concluded that the Fourteenth Amendment merely requires the application of the clearand-convincing standard at civil commitment hearings, and the state’s decision to impose 

the higher, reasonable-doubt standard did not trigger a right to a presumption-ofinnocence instruction. (Beeson, at p. 1409.) 

Johnson argues that Beeson, supra, 99 Cal.App.4th 1393 is flawed and 

inapplicable in the SVPA context. He first contends that the SVPA’s beyond-a-
15

reasonable-doubt standard is inextricably intertwined with the principle that a person is 

presumed not to be an SVP. We are not convinced. Even in criminal trials, the failure to 

give a requested instruction on the presumption of innocence does not necessarily violate 

the federal Constitution. (Kentucky v. Whorton (1979) 441 U.S. 786, 789.) Moreover, 

civil commitment proceedings are not criminal or punitive, and the constitutional 

principles applicable to criminal defendants do not necessarily apply. (See Addington v. 

Texas, supra, 441 U.S. at pp. 427-431 [beyond-a-reasonable-doubt standard not 

constitutionally required in civil commitment cases].) 

Second, Johnson argues that the legislature intended the presumption-of-innocence 

instruction to apply in the SVPA context. He reasons that statutes should be interpreted 

by assuming that the legislature is aware of judicial determinations and points out that, 

prior to the SVPA’s enactment, California courts held that former section 5352, an 

analogous provision of the Lanterman-Petris-Short Act, required an instruction that a 

proposed conservatee is presumed to not be gravely disabled until the state carries its 

burden of proof. (See Conservatorship of Law (1988) 202 Cal.App.3d 1336, 1340; 

Conservatorship of Walker (1987) 196 Cal.App.3d 1082, 1099.) We agree with the 

Attorney General that this is not an issue of statutory interpretation since the SVPA does 

not require any kind of jury instruction regarding presumptions about SVP status. Even 

if we considered it to be a matter of statutory interpretation, courts have reevaluated the 

application of criminal procedural safeguards to civil commitment proceedings since 

Walker and Law were decided over 25 years ago. (See Beeson, supra, 99 Cal.App.4th at 

pp. 1404-1405.) Moreover, the SVPA has been amended several times since Beeson was 

decided in 2002, and none of those amendments requires an instruction on presumption. 

(See, e.g., Stats. 2006, ch. 337, § 55; Stats. 2012, ch. 24, § 143.) 

Third, Johnson contends that, unlike the MDO statute at issue in Beeson, supra,

99 Cal.App.4th 1393, the SVPA does not provide adequate opportunities to correct 

erroneous commitments. We disagree. Although an SVP’s options for seeking release 

are restricted, they are sufficient to differentiate involuntary commitment under the 

SVPA from criminal incarceration. As discussed above, committed SVPs are entitled to 
16

an examination of their current mental condition once per year. (§ 6604.9, subd. (a).) 

The DSH may forward a report and recommendation for conditional relief if it 

determines that the committed person is no longer likely to commit acts of sexual 

violence (§ 6607), and the committed person may petition for conditional release once 

per year. (§ 6608, subd. (j).) And at any hearing on conditional release, the committed 

person has the right to the assistance of counsel and the appointment of experts. (§ 6608, 

subds. (a) & (g).) 

Accordingly, we hold that the trial court did not err by failing to instruct the jury 

that Johnson was presumed not to be an SVP until the state proved otherwise beyond a 

reasonable doubt. 

 4. Johnson’s equal protection challenge is unavailing. 

Johnson argues that the SVPA violates the equal protection clauses of the federal 

and state Constitutions because it treats SVPs less favorably than persons civilly 

committed under the MDO Act and persons civilly committed under Penal Code section 

1026 after pleading not guilty by reason of insanity and being acquitted of criminal 

charges (NGIs). He focuses on two differences between the treatment of SVPs on the 

one hand and MDOs and NGIs on the other. We conclude that neither difference 

supports a facial equal protection challenge. 

First, Johnson focuses on section 6608, subdivision (a), which allows committed 

SVPs to petition a trial court for discharge without the recommendation or concurrence of 

the DSH. Upon receipt of such a petition, the court must “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.” (§ 6608, subd. (a).) Johnson argues that the 

provision violates his equal protection rights because courts cannot summarily deny the 

petitions of similarly situated MDOs and NGIs without a hearing. 

The Attorney General argues that Johnson’s challenge to section 6608 is not ripe 

because the record does not show that he has petitioned for release under the statute. 

“The ripeness requirement . . . prevents courts from issuing purely advisory opinions. It 

is rooted in the fundamental concept that the proper role of the judiciary does not extend 
17

to the resolution of abstract differences of legal opinion . . . [and] is primarily bottomed 

on the recognition that judicial decision-making is best conducted in the context of an 

actual set of facts so that the issues will be framed with sufficient definiteness to enable 

the court to make a decree finally disposing of the controversy.” (Pacific Legal 

Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170.) The ripeness 

doctrine, however, should not prevent courts from adjudicating matters where: (1) the 

dispute is concrete and appropriate for immediate resolution and (2) delayed resolution 

would present a hardship to the parties. (Id. at pp. 170-173.) We agree that Johnson’s 

complaints are too abstract to warrant immediate resolution since Johnson has yet to 

petition for his release. If he files such a petition, the DSH may support it and the trial 

court would then be required to hold a hearing. But even if the DSH failed to support 

such a petition, the court could still set a hearing. In either case, the challenged provision 

would not be triggered. 

Rejecting Johnson’s equal protection challenge as unripe does not preclude review 

in the future. If Johnson petitions for release and the trial court summarily denies the 

petition as frivolous, he may appeal the dismissal on equal protection grounds. (See 

People v. Olsen (2014) 229 Cal.App.4th 981, 994.) Accordingly, we decline to reach the 

merits of his equal protection challenge to section 6608, subdivision (a) as the issue is not 

ripe.10

Johnson’s second equal protection challenge concerns SVPs’ indefinite terms of 

commitment and their burden of proof in seeking release. To obtain conditional release 

from indefinite commitment, an SVP must petition the trial court. (§ 6608, subd. (a).) If 

the DSH does not agree that conditional release is appropriate, the SVP bears the burden 

of proving by a preponderance of the evidence that it is. (§ 6608, subd. (k).) In contrast, 

 10 In People v. McCloud, supra, 213 Cal.App.4th 1076, our colleagues in Division 

Two concluded the same equal protection claim was not “wholly without merit” and 

remanded to the trial court for further factual findings. (Id. at p. 1088.) Whether the 

claim was ripe, however, was not addressed, and decisions are not authority for points 

they do not consider. (People v. Barragan (2004) 32 Cal.4th 236, 243.) 
18

the MDO statute only provides for a commitment of one year. (Pen. Code, § 2970, 

subd. (b).) If the state wishes to extend an MDO’s term, a hearing must be held and the 

state must prove beyond a reasonable doubt that the person still qualifies as an MDO. 

(Pen. Code, § 2972.) Similarly, the initial commitment term for an NGI is two years, and 

the term may be extended only if the state proves beyond a reasonable doubt that the NGI 

continues to meet the statutory criteria. (Pen. Code, § 1026.5, subd. (b)(8).) Johnson 

argues that the additional burdens imposed by the SVPA commitment scheme violate his 

equal protection rights. 

This is not the first time this issue has been raised. In McKee I, supra, 47 Cal.4th 

at pp. 1203, 1207, our state Supreme Court determined that, for purposes of the equal 

protection clause, SVPs are similarly situated to MDOs and NGIs. The court then 

remanded the case to the trial court for an evidentiary hearing to determine whether there 

were legitimate reasons to subject SVPs, but not MDOs and NGIs, to indefinite 

commitments. (Id. at p. 1208.) On remand, and following a 21-day evidentiary hearing, 

the trial court concluded that the People had met their burden of justifying the disparate 

treatment. (People v. McKee (2012) 207 Cal.App.4th 1325, 1330, 1332 (McKee II).) 

The Fourth District Court of Appeal affirmed (id. at pp. 1348, 1350), and the Supreme 

Court denied McKee’s petition for review on October 10, 2012, S204503. 

Johnson argues at length that McKee II, supra, 207 Cal.App.4th 1325 was 

incorrectly decided. But as explained by our colleagues in Division Three in People v. 

McKnight (2012) 212 Cal.App.4th 860, 863-864 (McKnight), the Supreme Court 

“transferred . . . multiple ‘grant and hold’ cases under McKee I . . . to the Courts of 

Appeal with directions to vacate their prior opinions and suspend further proceedings 

until the McKee I remand proceedings were final . . . . On remand, McKee [II] concluded 

that differences between SVP’s as a class and other offenders justify their different 

treatment under the Act. It is plain that McKee II is not to be restricted to [defendant] 

alone . . . , but rather its holding applies to the class of SVP’s as a whole.” (Ibid., italics 

omitted.) The Supreme Court denied review in McKnight on March 13, 2013, S208182, 
19

and it has since denied review in other cases that also found McKee II dispositive on the 

equal protection issue.11 

We agree with the Fourth District’s equal protection analysis in McKee II, supra, 

207 Cal.App.4th at pp. 1339-1347, and we thus conclude that Johnson’s indeterminate 

commitment under the SVPA does not violate his rights to equal protection. 

 5. Johnson’s ex post facto and double jeopardy 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. 

Johnson concedes that our state Supreme Court rejected this same argument in McKee I, 

supra, 47 Cal.4th at pp. 1193-1195, 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.) 

B. Johnson’s Habeas Petitions. 

 Having rejected the arguments Johnson raises in his appeal, we turn to his 

petitions for habeas corpus. In the first, he contends that the state’s case is completely 

undermined by two pieces of newly discovered evidence—specifically, the fifth edition 

of the DSM, which was published in May 2013, and the declaration of Allen 

Frances, M.D., which was submitted with the petition. In the second, he claims that the 

revisions to the DSM undermine the state’s experts’ testimony and render it “false 

evidence” under Penal Code section 1473 (section 1473). Essentially, both petitions ask 

us to conclude, in the context of a case in which competing expert testimony on the 

subject was presented without objection, that paraphilic coercive disorder can no longer 

be considered a valid mental disorder. We decline to do so. 

 11 People v. Gray (2014) 229 Cal.App.4th 285, 291-292, petition for review denied 

November 12, 2014, S221708; People v. Kisling (2014) 223 Cal.App.4th 544, 547-548, 

petition for review denied April 23, 2014, S216859; People v. McDonald (2013) 

214 Cal.App.4th 1367, 1378, petition for review denied July 10, 2013, S210417; 

People v. Landau (2013) 214 Cal.App.4th 1, 48, petition for review denied May 22, 

2013, S209450; People v. McCloud, supra, 213 Cal.App.4th at p. 1079, petition for 

review denied May 22, 2013, S208845. 
20

 We begin by observing that, in general, a person involuntarily committed under 

the SVPA may challenge the confinement through a petition for writ of habeas corpus. 

(§ 7250; People v. Allen (2008) 44 Cal.4th 843, 859; People v. Talhelm (2000) 

85 Cal.App.4th 400, 405.) The restrictions on bringing the writ are typically discussed in 

the context of challenges to criminal imprisonment, but they apply equally to challenges 

to civil commitments. Important among these restrictions is that the writ does not lie “to 

retry issues of fact or the merits of a defense, . . . and the sufficiency of the evidence to 

warrant the [jury’s determination] is not a proper issue for consideration.” (Ex parte 

Lindley (1947) 29 Cal.2d 709, 723.) And when a habeas petition is based on a claim of 

newly discovered evidence, “[i]t is not sufficient that the evidence might have weakened 

the prosecution’s case or presented a more difficult question for the judge or jury.” (In re 

Clark (1993) 5 Cal.4th 750, 766.) Rather, newly discovered evidence justifies habeas 

relief only when it completely undermines the entire structure of the state’s case. (In re 

Hall (1981) 30 Cal.3d 408, 421-423.) 

 A habeas petition may also be based on a claim that “[f]alse evidence that is 

substantially material or probative on the issue of guilt or punishment was introduced 

against a person[.]” (Pen. Code, § 1473, subd. (b)(1).) The legislature recently amended 

section 1473 to expand the definition of false evidence to “include opinions of experts 

that have either been repudiated by the expert who originally provided the opinion at a 

hearing or trial or that have been undermined by later scientific research or technological 

advances.” (Pen. Code, § 1473, subd. (e)(1); Stats. 2104, ch. 623, § 1.) Thus, both of 

Johnson’s petitions ultimately turn on whether the new version of the DSM undermines 

the validity of a diagnosis of paraphilic coercive disorder. 

 Being an extraordinary remedy, the writ is not available when an alternative 

remedy is. (In re Clark, supra, 5 Cal.4th at p. 764, fn. 3.) Seizing on this principle, the 

Attorney General argues that Johnson’s petitions must be denied because Johnson could 

argue in a section 6608 proceeding that the fifth edition of the DSM requires his release. 

We are not persuaded. A section 6608 proceeding does not provide Johnson with an 

adequate remedy because of the nature of both his claims, which involve whether the 
21

fifth edition renders invalid the diagnosis upon which his commitment under the SVPA is 

premised. If this were found to be true, the alternative remedy of a conditional release 

under section 6608 would be inadequate because it would require him to continue 

supervision under a “forensic conditional release program” for at least a year, and it 

would require him to petition for an unconditional release. (§ 6608, subds. (g) & (m).) If 

Johnson truly never had a mental disorder qualifying him as an SVP, he would not 

properly be subject to these restraints (even though he still would properly be required to 

fulfill any remaining parole obligations).12 Accordingly, section 6608 does not provide 

Johnson with an adequate alternative remedy. 

 We now turn to the merits of Johnson’s petitions. According to Johnson, the 

drafters of the fifth edition of the DSM rejected a proposal from certain groups to clarify 

the fourth edition’s language by including a specific diagnosis for paraphilic coercive 

disorder. He points out that the drafters also removed the passage in the fourth edition 

concerning nonconsenting persons and did not mention paraphilic coercive disorder when 

discussing conditions needing further research before being identified as official 

diagnoses.13 Johnson contends that the upshot of these changes is that paraphilic coercive 

disorder can no longer be considered a valid mental disorder under the SVPA. Although 

we accept that the fifth edition may cast additional doubt on the validity of paraphilic 

coercive disorder, we cannot agree that it completely undermines the state’s case or 

renders the state’s experts’ testimony false evidence. 

 The federal constitution does not require an SVP’s commitment to be based on a 

disorder that is uniformly recognized by the mental health community. In Hendricks, 

 12 Section 6608 might provide an adequate remedy in some situations, such as 

where newly discovered evidence establishes that the SVP is no longer likely to reoffend. 

If accepted, such evidence would only justify a conditional release, and the section 6608 

remedy therefore would be adequate. 

13 The fifth edition of the DSM still references a residual category of paraphilias, 

noting that “[m]any dozens of distinct paraphilias have been identified and named, and 

almost any of them could, by virtue of its negative consequences for the individual and 

for others, rise to the level of a paraphilic disorder.” 
22

supra, 521 U.S. 346, the United States Supreme Court rejected the argument that 

Kansas’s SVP Act violated due process because it allowed commitment based on a 

“ ‘mental abnormality[,]’ . . . a term coined by the Kansas Legislature, rather than by the 

psychiatric community.” (Id. at pp. 357, 359.) The court observed, “[W]e have never 

required State legislatures to adopt any particular nomenclature in drafting civil 

commitment statutes. . . . As a consequence, the States have, over the years, developed 

numerous specialized terms to define mental health concepts. Often, those definitions do 

not fit precisely with the definitions employed by the medical community,” which the 

court concluded was permissible. (Id. at p. 359.) 

 The Supreme Court later reaffirmed this principle in Crane, supra, 534 U.S. 407, 

another case involving Kansas’s SVP Act. The court rejected the argument that the 

statute required the state to prove an offender had a total or complete lack of control over

his or her dangerous behavior. (Id. at pp. 412-413.) It also concluded that an offender 

could not be committed without any lack-of-control determination. (Id. at p. 413.) 

Although an alternative standard might be more precise, “the Constitution’s safeguards of 

human liberty in the area of mental illness and the law are not always best enforced 

through precise bright-line rules.” (Ibid.) The court reasoned that “the States retain 

considerable leeway in defining the mental abnormalities and personality disorders that 

make an individual eligible for commitment” and that “the science of psychiatry, which 

informs but does not control ultimate legal determinations, is an ever-advancing science, 

whose distinctions do not seek precisely to mirror those of the law.” (Ibid.) 

 Following Hendricks and Crane, the Seventh Circuit Court of Appeals discussed 

the definitiveness of the DSM in particular in McGee v. Bartow (7th Cir. 2010) 593 F.3d 

556. The petitioner in McGee challenged his involuntary civil commitment under an 

SVP statute, arguing that paraphilic coercive disorder was an invalid disorder because it 

was not specifically listed in the fourth edition of the DSM. (McGee, at p. 574.) The 

court ruled, “[W]e cannot adopt any rule that asks the DSM to do what the text itself 

professes that it was not intended to do: answer ultimate legal questions or create a 

perfect fit between law and medicine in the realm of involuntary civil commitment.” (Id.
23

at p. 576.) The court observed that regardless whether a diagnosis is accepted by the 

DSM, “the factfinder has the ultimate responsibility to assess how probative a particular 

diagnosis is on the legal question of the existence of a ‘mental disorder’; the status of the 

diagnosis among mental health professionals is only a step on the way to that ultimate 

legal determination.” (Id. at p. 577, italics in original.) The existence of a professional 

debate over paraphilic coercive disorder does not mean that the diagnosis is “ ‘too 

imprecise a category’ ” such that it runs afoul of due process. (Id. at p. 570, quoting 

Hendricks, supra, 521 U.S. at p. 373 (conc. opn. of Kennedy, J.).) McGee concluded that 

“a finding of a ‘mental disorder’ does not violate due process even though the predicate 

diagnosis is not found within the four corners of the DSM.” (McGee, at p. 576.) 

 We agree with these observations and conclusions and consider them to be equally 

applicable to the DSM’s fifth edition. Even if the fifth edition reflects a growing 

skepticism in the psychiatric community about paraphilic coercive disorder, we cannot 

conclude that a commitment based on that disorder violates due process, thereby 

completely undermining the state’s case against Johnson. Similarly, we also cannot 

conclude that the fifth edition reflects scientific research that undermines expert 

testimony diagnosing that disorder and renders that testimony false evidence.14

 Our holding might be different if the SVPA required an SVP’s mental disorder to 

be specifically mentioned in the DSM. But it does not. The SVPA does not refer to the 

DSM, much less require an SVP’s mental disorder be listed in it. (See § 6600, 

subd. (a)(1) [an SVP is someone with a “diagnosed mental disorder that makes the person 

a danger to the health and safety of others”].) Even the Court of Appeals of New York, 

one of the courts most wary of basing an involuntary civil commitment on a diagnosis of 

paraphilic coercive disorder, accepts that under its state’s civil-commitment statute “a 

mental abnormality ‘need not necessarily be one so identified in the DSM’ ” since the 

 14 Courts in other states have continued to recognize paraphilic coercive disorder 

as a valid diagnosis despite the publication of the fifth edition of the DSM. (See, e.g., In 

re Detention of Melcher (Ill.Ct.App. 2013) 2 N.E.3d 1181, 1193-1195; In re Cozart

(Mo.Ct.App. 2014) 433 S.W.3d 483, 490.) 
24

statute “does not reference or require that a diagnosis be limited to mental disorders 

enumerated within the DSM.” (State v. Shannon S., supra, 980 N.E.2d at pp. 513-514.) 

 As for Dr. Frances’s declaration, it cannot even be considered newly discovered 

evidence or “later scientific research.” (Pen. Code, § 1473, subd. (e)(1).) Dr. Frances is 

a professor emeritus of psychiatry at Duke University and was the chair of the Task Force 

that formulated the original fourth edition of the DSM. In his declaration, he states that 

the American Psychiatric Association has, over the past 24 years, consistently rejected 

the notions that the compulsion to rape could be conceived of as a mental illness and that 

the diagnosis of paraphilic coercive disorder should be used in forensic proceedings. He 

also opines, “It is obvious that Mr. Johnson is no more than a common criminal whose 

sexual violence was not due to a mental disorder and that he does not qualify for any 

diagnosis of Paraphilia.” But other than its passing references to the fifth edition of the 

DSM, the declaration simply elaborates upon the testimony of Johnson’s experts below, 

who also questioned the legitimacy of a diagnosis of paraphilic coercive disorder. The 

declaration does not support Johnson’s claims based on newly discovered evidence and 

false evidence. 

 We think it worth reiterating that the validity of paraphilic coercive disorder was 

fully litigated at Johnson’s trial. Johnson did not object to the introduction of the state’s 

experts’ testimony on the subject, and he was able to cross-examine those experts and 
25

present the testimony of his own experts.15 (See Brown v. Watters (7th Cir. 2010) 

599 F.3d 602, 612 [conclusion that diagnosis of paraphilic coercive disorder is acceptable 

is “strengthened where, as here, able assistance of counsel actually did expose the 

professional debate to the jury and substantial contrary professional opinions were 

offered”], italics in original.) Although the fifth edition of the DSM and Dr. Frances’s 

testimony might have bolstered Johnson’s arguments if introduced at trial, they do not 

completely undermine the state’s case or render the state’s experts’ testimony false 

evidence. Regardless of the publication of the DSM’s fifth edition, the record before us 

includes substantial evidence that paraphilic coercive disorder is a legitimate diagnosis 

and that Johnson suffers from it. 

III. 

DISPOSITION

 The judgment is affirmed, and the petitions for a writ of habeas corpus are denied. 

 15 Because the testimony about paraphilic coercive disorder was introduced 

without objection, we need not decide how questions about the admissibility of expert 

testimony on that disorder should be handled by a trial court. Suffice it to say that the 

admissibility of expert testimony in California is typically evaluated under Evidence 

Code section 801, which requires the testimony to be related “to a subject that is 

sufficiently beyond common experience that the opinion of an expert would assist the 

trier of fact” and to be “of a type that reasonably may be relied upon by an expert in 

forming an opinion upon the subject.” In California, the admissibility of expert 

testimony about the diagnosis of mental conditions, including those not referenced in the 

DSM, is not governed by the Kelly/Frye test, which arose from Frye v. United States

(D.C. Cir. 1923) 293 F. 1013 and was adopted for use in California courts in People v. 

Kelly (1976) 17 Cal.3d 24. (People v. McDonald (1984) 37 Cal.3d 351, 373; People v. 

Ward (1999) 71 Cal.App.4th 368, 373.) The Kelly/Frye test requires a party seeking to 

introduce expert testimony relying on “a new scientific technique” to show “general 

acceptance of the new technique in the relevant scientific community” and the witness’s 

qualification as an expert and use of “the correct scientific procedures” in employing the 

technique. (Kelly, at p. 30.) 
26

 _________________________ 

 Humes, P.J. 

We concur: 

_________________________ 

Margulies, J. 

_________________________ 

Dondero, J. 
27

Trial Court: San Mateo County Superior Court 

Trial Judge: Honorable Robert Atack 

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