BILL ANALYSIS �
SB 179
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Date of Hearing: July 5, 2011
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 179 (Pavley) - As Introduced: February 7, 2011
SUMMARY : Tolls the period of parole for any person subject to
a sexually violent predator (SVP) proceeding upon a finding of
probable cause rather than when the person is actually found to
be a SVP. Specifically, this bill :
1)Provides that an order finding that the petition on its face,
supports a finding of probable cause, and that the individual
is likely a SVP shall toll the period of parole of that
person, from the date that person is released by the
California Department of Corrections and Rehabilitation (CDCR)
until a date determined as follows:
a) If the judge, following a probable cause hearing,
dismisses the petition . . . the date the judge enters the
order of dismissal.
b) If the judge or jury is not satisfied beyond a
reasonable doubt that the person is a
SVP . . . . , the date the judge enters the order.
c) If the person is committed to Department of Mental
Health (DMH) as a SVP and subsequently a court orders that
the person be unconditionally discharged . . . the date the
judge enters the order.
2)Amends the SVP parole tolling provisions in the Welfare and
Institution Code (WIC) as follows: an order issued by a judge
pursuant to WIC Section 6601.5, finding that the petition, on
its face, supports a finding of probable cause to believe that
the individual named in the petition is likely to engage in
sexually violent predatory criminal behavior upon his or her
release, shall toll that person's parole pursuant to Penal
Code Section 3000.
EXISTING LAW :
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1)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. (WIC Section 6600, et seq.)
2)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." �WIC Section 6600(a).]
3)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
Section 6600(c).]
4)Provides that where, pursuant to a screening process by the
CDCR or Board of Parole Hearings, an inmate fits the criteria
for evaluation as a SVP, the inmate shall be referred for
evaluation to DMH. �WIC Section 6601(b).]
5)Provides that the inmate "shall be evaluated by two practicing
psychiatrists or psychologists, or one practicing psychiatrist
and one practicing psychologist, designated by the Director of
Mental Health." If both evaluators concur that the person
meets the criteria for SVP commitment, DMH shall request a
prosecutor to file a commitment petition. �WIC Sections
6601(d) and (h).]
6)Provides that if the prosecutor concurs with the
recommendation of DMH, the prosecutor shall file a petition
for commitment. In an initial hearing on the petition, the
court determines whether or not there is probable cause that
the inmate is a SVP. �WIC Sections 6601(i) and 6601.5.]
7)Provides that where the court finds probable cause that the
person is a SVP, a formal trial upon proof beyond a reasonable
doubt is held. If the state prevails, the SVP is committed to
DMH for treatment for an indeterminate period of time. (WIC
Section 6603.)
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8)Provides "the parole period of any person found to be a
sexually violent predator shall be tolled until that person is
found to no longer be a sexually violent predator, at which
time the period of parole, or any remaining portion thereof,
shall begin to run." �Penal Code Section 3000(a)(4)a.]
9)Provides "if the person is otherwise subject to parole, a
finding or placement made pursuant to this article shall toll
the term of parole pursuant to �Section 3000 of the Penal
Code]." �WIC Section 6601(k).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "SB 179 closes a
loophole in the law to ensure that sex offenders serve their
court-ordered parole time. It does not expand or extend
parole - it simply corrects the timing of the parole.
"Due to an inconsistency in the law, the parole time for these
offenders begins as soon as they are released from prison, and
continues while the offender is being assessed in the state
hospital under full security - thus receiving overlapping
supervision services. As a consequence, some offenders run
out the clock on their three year court-ordered parole time
and are released into the community with no supervision -
contrary to the intent of the law.
"SB 179 would instead require that the parole time occur after
the offender is released from hospital custody.
"This is not only a better use of scarce parole resources, but
it will also make communities safer as these violent sex
offenders will be subject to supervision upon release from
custody.
2)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,
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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
CDCR and the Board of Parole Hearings (BPH) 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; and 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
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
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
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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).] The stated intent of
this bill is conform the offenses listed in this definition to
provisions of law related to serious juvenile offenders so as
to access prior juvenile records for the purposes of SVP
evaluations and commitments.
3)Background on Tolling Parole Provisions for SVP Proceedings :
Numerous provisions have been passed or implemented in the
past decade to increase supervision and monitoring of sex
offenders in the community. This is particularly true as
concerns high-risk sex offenders. Two prominent examples
include SAFE teams - special law enforcement units that
monitor certain sex offenders (Penal Code Section 13887) and
mandatory risk evaluation of all sex offenders, as mandated by
SB 1128 (Alquist) Ch. 337, Statutes of 2006. "Chelsea's Law"
- AB 1844 (Fletcher), Chapter 219, Statutes of 2010, expanded
sex offender monitoring through enactment of a form of what is
called the "sex offender containment model."
Proposition 83 of the 2006 General Election - often called
"Jessica's Law" - effectively repealed the parole tolling
provisions from SB 1128. Proposition 83 tolled the parole of
a person evaluated as a SVP only during the period that the
person was actually found to be a SVP at trial and committed
to DMH for treatment. This bill tolls the parole period for
the duration of the SVP process.
4)Extends Parole for an Individual Found Not to be a SVP : Under
current law, a person who has served his or her time for a
sexually violent offense may be subject to the filing of a
petition to have he or she deemed a SVP and indeterminately
committed. Under current law, the tolling of the parole
period is from the date found to meet the requirements of the
filed petition. Therefore, only those individuals who have
been found to be SVPs would be subject to having their parole
period tolled and in all practicality extended.
This bill affects an individual who serves his or her time for
the underlying offense, has a petition to declare him or her a
SVP filed against him or her, a judge declare that there is
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probable cause (one of the lowest standards in the criminal
justice system) to hold the individual over for trial, and
then he or she is found not to be a SVP. That individual is
already subjected to extended custody time despite the fact
that the individual is later determined not to be a SVP.
The practical effect is that current law only applies the
tolling of parole for those individuals actually found to be
SVPs and this bill extends those provisions to persons who may
later be determined not to be SVPs despite the fact that they
were incarcerated beyond the proscribed sentence for their
underlying offense.
5)Argument in Support : According to the Los Angeles County
District Attorney's Office , "�u]nder current law, the parole
period begins to run as soon as the offender is released from
prison. This means that an offender believed to be a SVP can
effectively complete his or her mandated parole period while
confined to a state mental hospital awaiting an often delayed
judicial determination of SVP status. As a result, offenders
can be released into community with no supervision upon
release from the state mental hospital.
"SB 179 would delay (toll) the beginning of the parole period
until a judicial determination what the offender is not an SVP
or is no longer an SVP. Therefore, the parole period would
not begin until the parolee is released from custody and would
ensure that all persons convicted of violent sex crimes are
subject to parole supervision when they re-enter the
community."
6)Argument in Opposition : According to the California Attorneys
for Criminal Justice , "�t]his bill would penalize people
simply for being accused of being sexually violent predators,
even if a Judge or jury later determined that the accusation
is not true. In fact, a person found NOT to be an SVP will
spend more time in custody as a result of this bill.
"Currently, Penal Code section 3003(a)(3) extends the parole
period for any parolee who is 'found to be a sexually violent
predator.' The parole period is tolled until the person is
found to no longer be a sexually violent predator. Current
law therefore operates only against parolees who have been
determined to be sexually violent predators.
SB 179
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"SB 179 would delete this provision, instead tolling the
parole period for any parolee who is named in an SVP petition,
even if the petition is eventually determined to be unfounded.
"A person who is not a sexually violent predator, but who is
accused of being one, will spend a substantial period in
custody while the SVP proceedings take place. Under SB 179,
when this person is finally released, he or she will find that
none of the time spent in custody is credited toward the
period of parole. The person will be subject to parole
restrictions months longer than would have been the case, if
the person had not been falsely accused of being a sexually
violent predator. In other words, this bill punishes someone
for being wrongfully accused.
"This result is unfair and unnecessary. There is no reason to
penalize a parolee for being unjustly accused of being a
sexually violent predator.
"For the same reason, SB 179 is likely unconstitutional.
Parole periods may be extended based on the parolee's
misconduct, so long as the extension has some rational
relationship to the parolee's conduct or the underlying crime.
Unfounded accusations are not misconduct."
7)Prior Legislation :
a) Proposition 83, of the 2006 General Election, increased
the penalties for sex offenders, broadened the definition
of certain sexual offenses, eliminated good time credits
for early release of certain offenders, prohibited
probation for certain crimes, extended parole for some
offenses, increased court-imposed fees on sex offenders and
provided for lifelong global positioning system monitoring
of high risk sex offenders.
b) SB 1128 (Alquist), Chapter 337, Statutes 2006, enacted
the Sex Offender Punishment, Control, and Containment Act
of 2006 and made specified legislative findings and
declarations concerning sex offenders.
REGISTERED SUPPORT / OPPOSITION :
Support
SB 179
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California Coalition Against Sexual Assault
California District Attorneys Association
California State Sheriffs' Association
Crime Victims United
Los Angeles District Attorney's Office
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744