BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                S
                             2009-2010 Regular Session               B

                                                                     6
                                                                     6
                                                                     9
          SB 669 (Hollingsworth)                                      
          As Amended April 14, 2009 
          Hearing date:  April 28, 2009
          Welfare & Institutions Code
          JM:mc

                       TRIAL IN SEXUALLY VIOLENT PREDATOR CASES:

              JURY INSTRUCTIONS ON FAILURE TO PARTICIPATE IN TREATMENT  


                                       HISTORY

          Source:  San Diego County District Attorney

          Prior Legislation: SB 503 (Hollingsworth) - 2007, failed passage  
          in Senate Public Safety

          Support: Riverside Sheriffs' Association; Association for Los  
                   Angeles Deputy Sheriffs; Los Angeles County District  
                   Attorney; City of Murietta Police Department;  
                   California District Attorneys Association; Riverside  
                   County District Attorney; Southwest California  
                   Legislative Council; City of Menifee; Crime Victims  
                   United of California; City of Hemet; City of Wildomar;  
                   San Bernardino County Sheriffs' Department

          Opposition:Taxpayers for Improving Public Safety; Disability  
          Rights California 


                                       KEY ISSUE
           




                                                                     (More)







                                                     SB 669 (Hollingsworth)
                                                                      PageB

          UNDER EXISTING LAW, A PERSON COMMITTED AS A SEXUALLY VIOLENT  
          PREDATOR (SVP) CAN PETITION FOR UNCONDITIONAL RELEASE OR  
          SUPERVISED CONDITIONAL RELEASE IF THE DEPARTMENT OF MENTAL  
          HEALTH (DMH) DETERMINES EITHER THAT THE PERSON IS NO LONGER AN  
          SVP OR THAT THE PERSON CAN SAFELY BE RELEASED INTO SUPERVISED  
          COMMUNITY TREATMENT.

                                                                (CONTINUED)



          UNDER EXISTING LAW, IF THE COURT FINDS PROBABLE CAUSE THAT THE DMH  
          DETERMINATION IS ACCURATE, THE COURT SHALL HOLD A FULL TRIAL,  
          EQUIVALENT TO THE INITIAL COMMITMENT TRIAL, TO DETERMINE IF THE  
          PERSON IS STILL A SEXUALLY VIOLENT PREDATOR.

          IN THE TRIAL TO DETERMINE WHETHER OR NOT THE PERSON IS STILL A  
          SEXUALLY VIOLENT PREDATOR, SHOULD THE JURY BE INSTRUCTED THAT  
          "FAILURE TO PARTICIPATE IN OR COMPLETE THE DMH SEX OFFENDER  
          COMMITMENT PROGRAM MAY BE CONSIDERED EVIDENCE THAT HIS OR HER  
          CONDITION HAS NOT CHANGED"? 



                                       PURPOSE

          The purpose of this bill is to provide that, in a trial to  
          determine whether or not a sexually violent predator (SVP)  
          patient is still an SVP, the court shall instruct the jury in  
          every case that failure to participate in or complete the  
          prescribed sex offender treatment may be considered evidence  
          that the person's condition has not changed.

           The Sexually Violent Predator (SVP) law  provides for the civil  
          commitment for psychiatric and psychological treatment of a  
          prison inmate found to be a sexually violent predator after the  
          person has served his or her prison commitment.  (Welf. & Inst.  
          Code  6600, et seq.)

           Existing law  defines a sexually violent predator as an inmate  




                                                                     (More)







                                                     SB 669 (Hollingsworth)
                                                                      PageC

          "who has been convicted of a sexually violent offense against  
          one or more victims 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."  (Welf. & Inst. Code  6600, subd. (a).)

           Existing law  defines a "diagnosed mental disorder" as one that  
          includes "a congenital or acquired condition affecting the  
          emotional or volitional capacity that predisposes the person to  
          the commission of criminal sexual acts in a degree constituting  
          the person a menace to the health and safety of others."  (Welf.  
          & Inst. Code  6600, subd. (c).)
          
           Existing law  provides that an SVP patient can, with the  
          concurrence of the Director of the Department of Mental Health,  
          petition for unconditional release if the patient "no longer  
          meets the definition of a sexually violent predator," or for  
          conditional release.  (Welf. & Inst. Code  6605.)  The  
          provisions of section 6605 describe procedures only for trial of  
          the issue of whether the patient should be unconditionally  
          released.  The section does not describe procedures for  
          determination of the issue of conditional release.  If the court  
          finds probable cause that the person is no longer a danger to  
          others, the state must prove in a jury trial that the person is  
          still an SVP.  (Welf. & Inst. Code  6605.)

           Existing law  provides that an SVP patient can, without the  
          concurrence of DMH, petition for conditional release.  Unless  
          the court finds the petition to be frivolous, the SVP may seek  
          to establish that he can be released into the community under  
          supervision.  (Welf. & Inst. Code  6608.)

           Existing law  provides that if DMH determines that a committed  
          person is no longer an SVP, DMH "shall seek judicial review of  
          the person's commitment" through a habeas corpus procedure  
          described in Welfare and Institutions Code section 7250.  (Welf.  
          & Inst. Code  6605, subd. (f).)

           Existing law  provides that if the court in a specified habeas  
          corpus proceeding (which can be filed by DMH, the committed  




                                                                     (More)







                                                     SB 669 (Hollingsworth)
                                                                      PageD

          person or a relative or friend on behalf of the person) finds  
          that the person is no longer a sexually violent predator, the  
          person shall be unconditionally discharged.  (Welf. & Inst. Code  
           6605, subd. (f).)

           This bill  provides that where, pursuant to Welfare &  
          Institutions Code section 6605, the court finds probable cause  
          that a person held as an SVP is no longer an SVP and trial is  
          held where the state has the burden to prove beyond a reasonable  
          doubt that the person remains an SVP (subds. (c)-(d), the jury  
          shall be instructed as follows:  "The committed person's failure  
          to participate in or complete[DMH] Sex Offender Commitment  
          Program (SOCP) shall be considered evidence that his or her  
          condition has not changed ?"
          
                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          California continues to face a severe prison overcrowding  
          crisis.  The Department of Corrections and Rehabilitation (CDCR)  
          currently has about 170,000 inmates under its jurisdiction.  Due  
          to a lack of traditional housing space available, the department  
          houses roughly 15,000 inmates in gyms and dayrooms.   
          California's prison population has increased by 125% (an average  
          of 4% annually) over the past 20 years, growing from 76,000  
          inmates to 171,000 inmates, far outpacing the state's population  
          growth rate for the age cohort with the highest risk of  
          incarceration.<1>

          In December of 2006 plaintiffs in two federal lawsuits against  
          CDCR sought a court-ordered limit on the prison population  
          pursuant to the federal Prison Litigation Reform Act.  On  
          February 9, 2009, the three-judge federal court panel issued a  
          tentative ruling that included the following conclusions with  
          ---------------------------
          <1>  "Between 1987 and 2007, California's population of ages 15  
          through 44 - the age cohort with the highest risk for  
          incarceration - grew by an average of less than 1% annually,  
          which is a pace much slower than the growth in prison  
          admissions."  (2009-2010 Budget Analysis Series, Judicial and  
          Criminal Justice, Legislative Analyst's Office (January 30,  
          2009).)



                                                                     (More)







                                                     SB 669 (Hollingsworth)
                                                                      PageE

          respect to overcrowding:

               No party contests that California's prisons are  
               overcrowded, however measured, and whether considered  
               in comparison to prisons in other states or jails  
               within this state.  There are simply too many  
               prisoners for the existing capacity.  The Governor,  
               the principal defendant, declared a state of emergency  
               in 2006 because of the "severe overcrowding" in  
               California's prisons, which has caused "substantial  
               risk to the health and safety of the men and women who  
               work inside these prisons and the inmates housed in  
               them."  . . .  A state appellate court upheld the  
               Governor's proclamation, holding that the evidence  
               supported the existence of conditions of "extreme  
               peril to the safety of persons and property."  
               (Citation omitted)  The Governor's declaration of the  
               state of emergency remains in effect to this day.

               . . .  the evidence is compelling that there is no  
               relief other than a prisoner release order that will  
               remedy the unconstitutional prison conditions.

               . . .

               Although the evidence may be less than perfectly  
               clear, it appears to the Court that in order to  
               alleviate the constitutional violations California's  
               inmate population must be reduced to at most 120% to  
               145% of design capacity, with some institutions or  
               clinical programs at or below 100%.  We caution the  
               parties, however, that these are not firm figures and  
               that the Court reserves the right - until its final  
               ruling - to determine that a higher or lower figure is  
               appropriate in general or in particular types of  
               facilities.

               . . .

               Under the PLRA, any prisoner release order that we  




                                                                     (More)







                                                     SB 669 (Hollingsworth)
                                                                      PageF

               issue will be narrowly drawn, extend no further than  
               necessary to correct the violation of constitutional  
               rights, and be the least intrusive means necessary to  
               correct the violation of those rights.  For this  
               reason, it is our present intention to adopt an order  
               requiring the State to develop a plan to reduce the  
               prison population to 120% or 145% of the prison's  
               design capacity (or somewhere in between) within a  
               period of two or three years.<2>

          The final outcome of the panel's tentative decision, as well as  
          any appeal that may be in response to the panel's final  
          decision, is unknown at the time of this writing.

           This bill  does not appear to aggravate the prison overcrowding  
          crisis outlined above.

                                      COMMENTS

          1.  Need for This Bill  

            The author states:
               The Sexually Violent Predator Act went into effect on  
               January 1, 1996.  These statutes established a new  
               category of civil commitment for persons classified as  
               Sexually Violent Predators (SVPs).  In establishing  
               the SVP Act, the California Legislature declared that  
               there is a small group of extremely dangerous sexual  
               offenders with diagnosed mental disorders that can be  
               readily identified while incarcerated.  It further  
               declared that these individuals are not safe to reside  
               at-large in the community and represent a danger to  
               the health and safety of others if they are released.   
               It was the intent of the Legislature that individuals  
               ----------------------
          <2>  Three Judge Court Tentative Ruling, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (Feb. 9, 2009).



                                                                     (More)







                                                     SB 669 (Hollingsworth)
                                                                      PageG

               classified as SVPs be confined and treated until they  
               no longer present a threat to society.  The SVP law  
               has been amended several times since it was enacted.   
               Current law defines a SVP as a person who has been  
               convicted of a sexually violent offense against one or  
               more victims and provides for an indeterminate  
               commitment.  Currently, there are roughly 768 SVPs in  
               state mental facilities.
               
               Completion of a treatment program is not currently a  
               condition of release under state law.  In fact, a vast  
               majority of adjudicated SVPs refuse treatment while in  
               a state hospital.  According to the Department of  
               Mental Health, 70% of Sexually Violent Predators are  
               currently refusing treatment.

               Under this bill, a SVPs refusal to engage in treatment  
               may be considered evidence that his or her condition  
               has not changed.   
          
          2.  Argumentative Jury Instructions and Instructions without  
          Evidentiary Support  

          The predecessor to this bill - SB 503 or 2008 - would have  
          required courts to instruct the jury that an SVP patient's  
          "failure to engage in or complete treatment shall be considered  
          evidence that his or her condition has not changed ?"   The  
          instruction proposed in SB 503 was mandatory in two ways.  One,  
          the court was required to give the instruction in every case,  
          regardless of whether or not there was any evidence that the  
          person did not engage in or complete treatment.  Two, the  
          instruction told the jury that it must consider failure to  
          engage in treatment as evidence that the person's condition had  
          not changed.  The instruction, both in the requirement that it  
          be given in each case and in the requirement that the jury must  
          draw a specified inference from assumed facts, raised issues as  
          to whether the instruction was improperly argumentative in  
          telling the jury to determine critical facts in a particular  
          manner and with a particular result.





                                                                     (More)







                                                     SB 669 (Hollingsworth)
                                                                      PageH

          A Jury Instruction must be Supported by the Evidence
          
          A court has broad power to determine which jury instructions  
          must be given to the jury.  However, the court must give the  
          jury all instructions necessary to determine the issues  
          presented by case.  (People v. Saddler (1979) 24 Cal.3d 671,  
          681.)  Nevertheless, an instruction should only be given where  
          there is some evidentiary support.  (People v. Hannon (1977) 19  
          Cal.3d 588, 597-598.)

          This bill requires the court to give an instruction concerning  
          the failure to engage in or complete treatment, regardless of  
          whether or not there is any evidence to support the instruction.  
           There would be very few cases where there is evidentiary  
          support for an instruction concerning the SVP patient's failure  
          to participate in treatment.  That is because DMH would not ever  
          likely conclude that an SVP patient who did not engage in  
          treatment was no longer dangerous.  The only reasonably possible  
          case in which that would occur is where a defendant has suffered  
          some truly incapacitating brain or bodily injury.  In such a  
          case, DMH would likely pursue another option for obtaining  
          release of the patient.

          However, requiring the court to instruct the jury on a patient's  
          failure to participate in treatment - regardless of whether or  
          not the person did so - could improperly confuse or prejudice  
          the jury.  Reasonable jurors would likely assume that the person  
          did not participate in treatment.  Such an incorrect assumption  
          could well turn a close case.  

          Argumentative Jury Instructions Improperly tell a Jury how to  
          Find Facts
          
          The law generally disapproves of argumentative jury  
          instructions.  (People v. Wright (1988 45 Cal.3d 1126; People v.  
           Linkenauger (1995) 32 Cal.App.4th 1603, 1615.)  An  
          argumentative jury instruction essentially directs the jury how  
          to determine an issue of fact.  Determining facts is the core  
          function of a jury.  The court may not usurp that duty and  
          power.  Whether or not a defendant has "failed" to engage in  




                                                                     (More)







                                                     SB 669 (Hollingsworth)
                                                                      PageI

          treatment and whether or not the defendant has "changed" are  
          critical facts that the jury, and no other entity, must  
          determine at an SVP trial.  It can be argued that telling a jury  
          that failure to engage in treatment is evidence that a person  
          has not changed so as to no longer be a sexually violent  
          predator invades the province of the jury.

          The court in Wright explained: 

               Defendant's second proposed instruction lists certain  
               specific items of evidence introduced at trial, and  
               would advise the jury that it may "consider" such  
               evidence in determining whether defendant is guilty  
               beyond a reasonable doubt.  The court refused to give  
               this instruction because it is argumentative, i.e., it  
               would invite the jury to draw inferences favorable to  
               the defendant from specified items of evidence on a  
               disputed question of fact, and therefore properly  
               belongs not in instructions, but in the arguments of  
               counsel to the jury.  (People v. Wright, supra, 45  
               Cal.3d at p. 1135.)

          The court can properly give a jury "pinpoint" instructions to  
          direct the jury to important issues in the case, but such an  
          instruction should not argue facts.  A pinpoint instruction is  
          generally given at the request of one of the parties.  Even in  
          the absence of a request by the parties, the court can direct  
          the juror's attention to issues of fact.  However, such an  
          instruction should be given in a neutral manner.  One of the  
          more common instructions of this type is the so-called flight  
          instruction.  The flight instruction tells the jury that the  
          flight of a defendant after he or she has been accused of a  
          crime "is a fact which, if proved, the jury may consider in  
          deciding his [or her] guilt or innocence.  The weight to which  
          such circumstance is entitled is a matter for the jury to  
          decide."  The flight instruction has been upheld numerous times.  
           (People v. Crew (2003) 31 Cal.4th 822 848-849.)

          The instruction in this bill is certainly less argumentative  
          than an instruction telling the jury that it shall consider  




                                                                     (More)







                                                     SB 669 (Hollingsworth)
                                                                      PageJ

          failure to engage in treatment as indicating that the person has  
          not changed.  Nevertheless, the instruction can still be  
          criticized as being argumentative in that it does not require  
          that there be any evidence to support. 

          DOES THE JURY INSTRUCTION PROPOSED BY THIS ESSENTIALLY REQUIRE  
          THE COURT TO IMPROPERLY MAKE A FINDING A FACT?

          IS THE PROPOSED JURY INSTRUCTION IMPROPERLY ARGUMENTATIVE?

          3.  Suggested Amendment - Modified Jury Instruction Concerning  
            Evidence that SVP Patient did not Participate in Treatment  
































                                                                     (More)











          It is suggested that the court should be directed to give an  
          instruction about the SVP patient's failure to participate in or  
          complete treatment only if there is evidence to support such an  
          instruction and the prosecution relies on such evidence to prove  
          the person remains an SVP.  It is suggested that the instruction  
          should also tell the jury that it is the judge of whether or not  
          the person did not engage in or complete treatment.  The flight  
          instruction (Pen. Code  1127c) could be a model for a proper  
          instruction on a person's failure to engage in or complete  
          treatment.  The flight instruction allows the jury to consider a  
          defendant's flight from the scene of the crime - a fact showing  
          consciousness of guilt - as evidence of the defendant's guilt.   
          The flight instruction has been upheld in very numerous  
          California appellate and Supreme Court decisions.

          SHOULD THE PROVISION CONCERNING A JURY INSTRUCTION ABOUT AN SVP  
          PATIENT'S FAILURE TO PARTICIPATE IN OR COMPLETE TREATMENT READ  
          AS FOLLOWS:     

               Where the person's failure to participate in or  
               complete treatment is relied upon as proof that the  
               person's condition has not changed, and there is  
               evidence to support such reliance, the jury shall be  
               instructed substantially as follows:  "the committed  
               person's failure to   participate in or complete the ?  
               commitment program (SOCP) are facts that, if proved,  
               may be considered evidence that his or her condition  
               has not changed.  The weight to which such  
               circumstance is entitled is a matter for the jury to  
               decide.
          
          4.  The Instruction Required by this Bill would likely Rarely be  
            Given  

          The instruction required by this bill would reasonably only  
          apply in an odd or rare case.  That is, in order for an SVP  
          patient to obtain a trial for unconditional release, DMH must  
          authorize the patient to file the petition for release.  DMH is  
          the patient's treating entity.  It would be highly unusual for  




                                                                     (More)







                                                     SB 669 (Hollingsworth)
                                                                      PageL

          DMH to authorize a patient to file a petition for release based  
          on the fact that the patient is no longer is an SVP, or that the  
          patient can safely and conditionally be released into community  
          treatment, if the patient has not participated in treatment.   
          Perhaps an individual clinician might disagree with DMH  
          supervisors on the issue of whether or not the patient is still  
          a danger to the public.  However, a patient's failure to  
          participate in treatment would not likely be the cause of such a  
          disagreement.

          5.  DMH has a Duty to Seek an SVP Patient's Release in a Habeas  
            Corpus Proceeding if DMH "Has Reason to Believe" the Patient  
            is no Longer an SVP
           
          Section 6605, subdivision (f), requires DMH, where it "has  
                                                        reason to believe that a person committed as a sexually violent  
          predator is no longer a sexually violent predator, to seek  
          release for the person through a habeas corpus proceeding."   
          Where the court in the proceeding finds that the person is no  
          longer an SVP, the person shall be unconditionally released and  
          unconditionally discharged. 

          The provisions in subdivision (f) appear to be directly at odds  
          with the entire process where DMH, following the annual  
          evaluation of an SVP patient, can authorize a patient to file a  
          statutory petition for unconditional or conditional release, "if  
          the person no longer meets the definition of a sexually violent  
          predator."  Section 6605 (f) appears to require DMH to actively  
          pursue a judicial order of release.

          WOULD DMH, ON THE BASIS THAT AN SVP PATIENT IS NO LONGER  
          DANGEROUS, AUTHORIZE AN SVP PATIENT TO FILE FOR UNCONDITIONAL  
          RELEASE IF THE PATIENT DID NOT PARTICIPATE IN TREATMENT?

          IN A CASE WHERE DMH BELIEVES THAT A PERSON IS NO LONGER AN SVP,  
          DOES DMH HAVE A DUTY TO SEEK THE PERSON'S RELEASE IN A HABEAS  
          CORPUS PROCEEDING, IN ADDITION TO AUTHORIZING THE PERSON TO FILE  
          A PETITION FOR UNCONDITIONAL DISCHARGE?














                                                     SB 669 (Hollingsworth)
                                                                      PageM

                                   ***************