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 toparticipate 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 ***************