BILL ANALYSIS
AB 669
Page 1
Date of Hearing: June 30, 2009
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Juan Arambula, Chair
SB 669 (Hollingsworth) - As Amended: May 5, 2009
SUMMARY : Provides that, in a trial to determine whether or not a
person is still a sexually violent predator (SVP), the court
shall instruct the jury that failure to participate in or
complete the prescribed sex offender treatment may be considered
evidence that a person's condition has not changed.
Specifically, this bill :
1)States that where the SVP'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
that reliance, the jury shall be instructed.
2)Provides that the jury shall be instructed as follows,"[t]he
committed person's failure to participate in or complete the
State Department of Mental Health Sex Offender Commitment
Program (SOCP) are facts that, if proved, may be considered as
evidence that the committed person's condition has not
changed. The weight to be given that evidence is a matter for
the jury to determine."
EXISTING LAW :
1)Defines a "sexually violent predator" as an inmate 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. [Welfare and Institutions Code
(WIC) Section 6600(a).]
2)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." [WIC
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Section 6600(c).]
3)Provides that a SVP patient can, with the concurrence of the
Director of the Department of Mental Health (DMH), petition
for unconditional release if the patient "no longer meets the
definition of a SVP," or for conditional release. (WIC
Section 6605.) The provisions of WIC 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 a SVP. (WIC
Section 6605.)
4)Provides that a 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 or she can be released into the community under
supervision. (WIC Section 6608.)
5)Provides that if DMH determines that a committed person is no
longer a SVP, DMH "shall seek judicial review of the person's
commitment" through a habeas corpus procedure described in WIC
Section 7250. [WIC Section 6605(f).]
6)Provides that if the court in a specified habeas corpus
proceeding (which can be filed by DMH, the committed person or
a relative or friend on behalf of the person) finds that the
person is no longer a SVP, the person shall be unconditionally
discharged. [WIC Section 6605(f).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "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
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
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and represent a danger to the health and safety of others if
they are released. It was the intent of the Legislature that
individuals 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 SVPs are currently
refusing treatment. Under this bill, a SVP's refusal to
engage in treatment may be considered evidence that his or her
condition has not changed. Recent amendments taken in Senate
Public Safety seek to clarify jury instruction in these
cases."
2)Changes from Prior Failed Legislation : The predecessor to
this bill, SB 503 (Hollingsworth), 2007-08 Legislative
Session, would have required courts to instruct the jury that
a 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.
In the present form, this bill remains mandatory in that a
judge "shall" give this instruction to the jury when a
defendant fails to participate in treatment. However, this
bill is not mandatory in that it does not directly instruct
the jury to consider the failure to participate in treatment
as evidence that the respondent's condition has not changed.
Instead, this bill instructs that jury that the failure to
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participate "may be considered" and the "weight to be given
that evidence is a matter for the jury to determine."
3)SVP Law and "Sexually Violent Offenses" : California's SVP Act
became effective
January 1, 1996. The Act created a new civil commitment for
SVPs. The Legislature disavowed any "punitive purpose" and
declared its intent to establish "civil commitment"
proceedings in order to provide "treatment" to mentally
disordered individuals who cannot control sexually violent
criminal behavior. [See, e.g., AB 888 (Rogan), Chapter 763,
Statutes of 1995, Section 1; Senate Committee on Criminal
Procedure, Analysis of AB 888 (July 11, 1995).] The
Legislature also made clear that, despite their criminal
records, persons eligible for commitment and treatment as SVPs
are to be viewed "not as criminals, but as sick persons."
(WIC Section 6250.) Consistent with these remarks, the SVP
Act was placed in the WIC, surrounded on each side by other
schemes concerned with the care and treatment of various
mentally ill and disabled groups. [See, e.g., WIC Section
5000 (Lanterman-Petris-Short Act) and WIC Section 6500
(Mentally Retarded Persons Law).]
The SVP law tries to ensure that sexual predators suffering from
mental disorders and deemed likely to re-offend are treated in
a secure facility through a civil commitment process. The
California Department of Corrections and Rehabilitation and
the Board of Parole Hearings screen cases to determine if they
meet the criteria specified in the statute. If so, the
prisoner is referred to the DMH for clinical evaluation by two
clinical evaluators. If both clinical evaluators find that
the prisoner meets the criteria, the case is referred to the
county district attorney who may file a petition for civil
commitment. Once a petition has been filed, a judge holds a
probable cause hearing; if probable cause if found, the
prisoner is scheduled for a trial. If the jury finds beyond a
reasonable doubt that the offender meets the statutory
criteria, the prisoner may then be civilly committed to a DMH
facility for treatment.
The SVP law was substantially amended by Proposition 83
("Jessica's Law"), operative on November 7, 2006, and SB 1128
(Alquist), Chapter 337, Statutes of 2006. Existing law now
states a person committed as a SVP may be held for an
indeterminate term upon commitment. Review of the offender's
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status shall be conducted on an annual basis, but he or she
may not be released until the DMH determines the offender no
longer meets the definition of a SVP or less restrictive
placement is appropriate. [WIC Section 6605(b).]
As noted above, in order to be characterized a SVP, the offender
must suffer a conviction for a "sexually violent offense".
The definition of "sexually violent offenses", also expanded
by Jessica's Law, is defined as a specified sex act committed
by force, violence, duress, menace, fear of immediate and
unlawful bodily injury on the victim or another person, or
threatening to retaliate in the future. The specified sex
acts are rape, spousal rape, rape with a foreign object,
aggravated sexual assault of a child, sodomy, child
molestation, oral copulation, continuous sexual abuse of a
child, sexual penetration, and kidnapping, kidnapping for
ransom, and assault with intent to commit one of the offenses
listed above. [WIC Section 6600(b).]
4)Indeterminate Terms and Retroactivity : On June 4, 2009, the
Court of Appeal for the Fourth Appellate District of
California ruled on the applicability of the indeterminate
term passed in Jessica's Law as it applies to SVPs
incarcerated prior to 2006. In People v. Eric Wayne Taylor
(2009) 2009 Cal. App. LEXIS 896, the court ruled that SVPs who
were committed prior to Jessica's Law in 2006 are entitled to
a jury trial to determine whether or not they remain SVPs.
Prior to Jessica's Law, SVPs were committed for two-year
periods and were entitled to a jury trial prior to
recommitment. In Taylor, the court held that Jessica's Law
was unclear as to the retroactive applicability to individuals
incarcerated at the time of the law's passage.
"It is more reasonable to interpret the legislative reference to
initial commitment as referring to any post-November 8, 2006
commitment order following a determination of SVP status under
WIC section 6604?We must therefore conclude that retroactive
application of the indeterminate term to the previously
completed initial commitment was erroneous, and that the
proper procedure is to impose the indeterminate term in
conjunction with the initiation of proceedings to extend a SVP
commitment."
The court ruled that SVPs incarcerated on a two-year commitment
at the time of Jessica's Law are entitled to a recommitment
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trial. At the recommitment trial, if they are found to be
SVPs the court may, at that time, impose the indeterminate
term contemplated in Jessica's Law.
"We conclude that a court may impose an indeterminate commitment
following a current SVP recommitment proceeding for persons
originally committed under the old law. Here, the court
retroactively converted prior completed two-year terms to
indeterminate terms without a current finding that each
defendant met the criteria of a SVP without a trial on the
current petition. Remand is necessary to correct these
errors."
5)The Jury Instruction Required by this Bill is Applicable to a
Limited Number of Cases : The instruction required by this
bill would reasonably only apply in an odd or rare case. That
is, in order for a 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 DMH to authorize a
patient to file a petition for release based on the fact that
the patient is no longer is a 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. Additionally, an individual committed prior to
the passage of Jessica's Law who has not had his or her
recommitment trial (as contemplated in Taylor) would likely be
subject to this instruction if the petitioning attorney can
show evidence that he or she has not participated in
treatment.
6)Jury Instructions 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
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the failure to participate in treatment "where the SVP'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 that reliance, the jury shall be
instructed." The present version of the bill requires
evidence during the course of the trial that the SVP failed to
participate in treatment prior to giving the instruction to
the jury.
7)Argument in Support : According to the Association for Los
Angeles County Sheriffs , "[a] vast majority of SVPs refuse
treatment while in a state hospital. According to the
Department of Mental Health, 70% of SVPs are currently
refusing treatment. Treatment is imperative due to the
alarmingly high recidivism rate of SVPs after they are
released, which demonstrates the need for all SVPs to
participate in and complete a treatment program. This bill
would restore a previous requirement that completion of a
treatment program be a condition for SVPs. Under this bill,
the refusal by a SVP to engage in treatment would be
considered evidence that his or her condition has not
changed."
8)Argument in Opposition : According to Disability Rights
California , "[e]xisting law provides that the Director of
Mental Health provide each person who is committed as a SVP
with an annual written report which includes consideration of
whether the committed person currently meets the definition of
a SVP and whether conditional or unconditional release is in
the best interests of the committed person and the community.
"If the department determines that the person is no longer a SVP
or conditional release is in the best interest of the person
and that the conditions can be imposed to adequately protect
the community, the director authorizes the committed person to
petition the court for conditional release or unconditional
discharge.
"Upon receipt of such a petition for conditional release or
unconditional discharge the court holds a hearing to determine
if probable cause exists for relief. If probable cause is
found, then the court sets a hearing on the issue.
"At the hearing on the issue, the bill would require that where
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the person's failure to participate in or complete treatment
is relied upon as proof that the person's condition has not
changed there is evidence that supports that reliance - the
jury be instructed that the committed person's failure to
participate in or complete the State Department of Mental
Health Sex Offender Commitment Program may, if proved, be
considered evidence that his or condition has not changed.
"Disability Right California supports legislation that ensures
treatment is available for those who request it in the lease
restrictive environment possible. SB 669 goes against this
principal. Pursuant to Title 9 of the California Code of
Regulations section 883(b)(2), people committed under
provisions other than the Lanterman Petris Short Act have a
right to receive treatment for a diagnosed mental health
disorder. This treatment must be provided so as to be in the
lease restrictive of individual liberty and promote personal
independence. SB 669 may result in a violation of this
regulation. There may be times when a SVP does not
participate in treatment because the treatment violates the
above regulation. We are concerned that SVPs may be coerced
into counter-therapeutic treatment if participation in
treatment is a requirement to obtain conditional release.
"We are concerned that the language 'failure to participate or
complete treatment' may include a SVP who wants to participate
in treatment, but is not able to due to circumstances outside
his control, i.e., staffing shortages. Staffing shortages
have been a problem for Coalinga State Hospital since the
hospital opened 2005 for purposes of SVP treatment. SVP
treatment stages are not fully functional, partly due to the
lack of consistent staffing at Coalinga State Hospital. Thus
participation in treatment may be outside the control of the
individual - yet in the department's opinion the individual
may still be a candidate for conditional release. We want to
ensure that people are released when they are ready and not
held for reasons unrelated to no longer being a SVP or
conditional release is in the best interest of the person that
conditions can be imposed to adequately protect the
community."
9)Prior Legislation : SB 503 (Hollingsworth) 2007-08, would have
provided that, in a trial held pursuant to a judicial finding
that a person is no longer a SVP, the jury shall be instructed
by the court that failure to engage in treatment shall be
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considered evidence that the person's condition has not
changed; and would have provided in connection with such
trials that "completion of treatment shall be a condition of
release." SB 503 failed to pass the Senate Committee on
Public Safety.
REGISTERED SUPPORT / OPPOSITION :
Support
Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
City of Hemet
City of Menifee
City of Moreno Valley
City of Murrieta
City of Wildomar
Crime Victims United
La Mesa Spring Valley School District
Los Angeles County District Attorney's Office
Riverside County District Attorney
Riverside Sheriffs Association
San Bernardino County Sheriffs' Department
San Diego County District Attorney
Southwest California Legislative Council
Opposition
Disability Rights California
Taxpayers for Improving Public Safety
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744