BILL NUMBER: SB 492 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Correa
FEBRUARY 17, 2011
An act to amend Sections 6600, 6601, and 6608 of the Welfare and
Institutions Code, relating to mental health.
LEGISLATIVE COUNSEL'S DIGEST
SB 492, as introduced, Correa. Sexually violent predators: civil
commitment.
Existing law provides for the civil commitment of criminal
offenders who have been determined to be sexually violent predators
for treatment in a secure state hospital facility, as specified.
Proposition 83 of the November 7, 2006, statewide general election,
made various changes to the sexually violent predator civil
commitment process. Proposition 83 permits the Legislature to amend
its provisions, either by a 2/3 vote of the membership of each house,
or by majority vote of the membership of each house if the
amendments expand the scope of the application of the provisions of
the proposition or increase the punishments or penalties provided in
the proposition.
Existing law requires the Secretary of the Department of
Corrections and Rehabilitation (CDCR) to refer a person who is in
custody under that department's jurisdiction, who is serving a
determinate sentence or whose parole has been revoked, for evaluation
by the State Department of Mental Health when he or she determines
that the person may be a sexually violent predator. Existing law
requires that this referral be made at least 6 months before the
prisoner's release date from prison.
This bill would require the Secretary of the Department of
Corrections and Rehabilitation instead to refer to the State
Department of Mental Health (DMH) for assessment any person in the
custody of the CDCR, including the Division of Juvenile Facilities
and persons on parole or for whom a warrant of arrest is outstanding,
who has committed a sexually violent offense, as defined. The bill
would also require the Director of Mental Health to identify and
evaluate individuals who are in custody under the jurisdiction of the
DMH and who have convictions for sexually violent offenses at least
6 months prior to their release. By increasing the responsibilities
of local officials, this bill would impose a state-mandated local
program.
Existing law establishes a screening process for the CDCR and the
Board of Parole Hearings to determine whether a person has committed
a sexually violent offense, and to determine if the person is likely
to be a sexually violent predator prior to referral to the DMH for a
full evaluation.
This bill would, instead, require the agency with jurisdiction
over the confined person to determine whether that person has
committed a sexually violent offense and to give notice to the
designated county attorney, as provided. The bill would require the
DMH to request the designated county attorney determine whether any
of the sexually violent offenses are predatory, as defined, and, if
the offenses are determined to be predatory, to complete a full
evaluation, as specified. The bill would also set forth additional
processes for information exchange between the designated county
attorney and the DMH and its evaluators. By giving county attorneys
additional duties, this bill would impose a state-mandated local
program.
Under existing law, persons to be evaluated for civil commitment
are evaluated by 2 independent professionals. If the evaluators
agree, then a petition for civil commitment may be filed. If the
evaluators do not agree, but one evaluator thinks that the person is
eligible for commitment, then 2 new evaluations are arranged and a
petition may not be filed unless both evaluators agree that the
person meets the criteria.
This bill would require, instead, that the reports of the 2
independent professionals be forwarded to the designated county
attorney and would remove the requirement of evaluator agreement for
the filing of the petition. The bill would require the designated
county attorney to review the evaluations and, if he or she
determines that the evaluation was based on omitted material
information, to request that the DMH provide the evaluators with the
information needed to determine if the conclusion of the report would
be changed. The bill would require the DMH to comply with this
request within a specified time period.
Existing law provides for a procedure for petition for conditional
release from civil commitment for a person who has been determined
to be a sexually violent predator, including a court hearing.
This bill would add requirements to this hearing process,
including the right to be present, the right to a jury trial, the
right of victims to testify, a requirement that the court or jury
review all prior findings and orders in the case as part of the
evidence, and a burden of proof on the state to prove beyond a
reasonable doubt that the committed person's diagnosed mental
disorder remains such that he or she is a danger to the health and
safety of others and is likely to engage in sexually violent criminal
behavior if discharged.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6600 of the Welfare and Institutions Code is
amended to read:
6600. As used in this article, the following terms have the
following meanings:
(a) (1) "Sexually violent predator" means a person 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.
(2) For purposes of this subdivision any of the following shall be
considered a conviction for a sexually violent offense:
(A) A prior or current conviction that resulted in a determinate
prison sentence for an offense described in subdivision (b).
(B) A conviction for an offense described in subdivision (b) that
was committed prior to July 1, 1977, and that resulted in an
indeterminate prison sentence.
(C) A prior conviction in another jurisdiction for an offense that
includes all of the elements of an offense described in subdivision
(b).
(D) A conviction for an offense under a predecessor statute that
includes all of the elements of an offense described in subdivision
(b).
(E) A prior conviction for which the inmate received a grant of
probation for an offense described in subdivision (b).
(F) A prior finding of not guilty by reason of insanity for an
offense described in subdivision (b).
(G) A conviction resulting in a finding that the person was a
mentally disordered sex offender.
(H) A prior conviction for an offense described in subdivision (b)
for which the person was committed to the Department of the
Youth Authority Division of Juvenile Facilities
pursuant to Section 1731.5.
(I) A prior conviction for an offense described in subdivision (b)
that resulted in an indeterminate prison sentence.
(3) Conviction of one or more of the crimes enumerated in this
section shall constitute evidence that may support a court or jury
determination that a person is a sexually violent predator, but shall
not be the sole basis for the determination. The existence of any
prior convictions may be shown with documentary evidence. The details
underlying the commission of an offense that led to a prior
conviction, including a predatory relationship with the victim, may
be shown by documentary evidence, including, but not limited to,
preliminary hearing transcripts, trial transcripts, probation and
sentencing reports, and evaluations by the State Department of Mental
Health. Jurors shall be admonished that they may not find a person a
sexually violent predator based on prior offenses absent relevant
evidence of a currently 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.
(4) The provisions of this section shall apply to any person
against whom proceedings were initiated for commitment as a sexually
violent predator on or after January 1, 1996.
(b) "Sexually violent offense" means the following acts when
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 against the victim or any
other person, and that are committed on, before, or after the
effective date of this article and result in a conviction or a
finding of not guilty by reason of insanity, as defined in
subdivision (a): a felony violation of Section 261, 262, 264.1, 269,
286, 288, 288a, 288.5, or 289 of the Penal Code, or any felony
violation of Section 207, 209, or 220 of the Penal Code, committed
with the intent to commit a violation of Section 261, 262, 264.1,
286, 288, 288a, or 289 of the Penal Code.
(c) "Diagnosed mental disorder" 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.
(d) "Danger to the health and safety of others" does not require
proof of a recent overt act while the offender is in custody.
(e) "Predatory" means an act is directed toward a stranger, a
person of casual acquaintance with whom no substantial relationship
exists, or an individual with whom a relationship has been
established or promoted for the primary purpose of victimization.
"Predatory" also includes acts with multiple victims regardless of
the relationship between the perpetrator and any victim, and
regardless of whether the acts were committed on the same or
different occasions.
(f) "Recent overt act" means any criminal act that manifests a
likelihood that the actor may engage in sexually violent predatory
criminal behavior.
(g) Notwithstanding any other provision of law and for purposes of
this section, a prior juvenile adjudication of a sexually violent
offense may constitute a prior conviction for which the person
received a determinate term if all of the following apply:
(1) The juvenile was 16 years of age or older at the time he or
she committed the prior offense.
(2) The prior offense is a sexually violent offense as specified
in subdivision (b).
(3) The juvenile was adjudged a ward of the juvenile court within
the meaning of Section 602 because of the person's commission of the
offense giving rise to the juvenile court adjudication.
(4) The juvenile was committed to the Department of the
Youth Authority Division of Juvenile Facilities
for the sexually violent offense.
(h) A minor adjudged a ward of the court for commission of an
offense that is defined as a sexually violent offense shall be
entitled to specific treatment as a sexual offender. The failure of a
minor to receive that treatment shall not constitute a defense or
bar to a determination that any person is a sexually violent predator
within the meaning of this article.
SEC. 2. Section 6601 of the Welfare and Institutions Code, as
amended by Section 4 of Chapter 710 of the Statutes of 2010, is
amended to read:
6601. (a) (1) Whenever the Secretary of the Department of
Corrections and Rehabilitation determines that an individual who is
in custody under the jurisdiction of the Department of Corrections
and Rehabilitation or the Division of Juvenile Facilities
, and who is either serving a determinate prison sentence
or whose parole has been revoked, may be a sexually violent predator
has committed a sexually violent offense as defined in
subdivision (a) or (b) of Section 6600 , the secretary shall,
at least six months prior to that individual's scheduled date for
release from prison or another facility , refer the person
to the State Department of Mental Health for evaluation
in accordance with this section. However, if the inmate
individual was received by the department with
less than nine months of his or her sentence to serve, or if the
inmate's individual's release date is
modified by judicial or administrative action, the secretary may
refer the person for evaluation in accordance with this section at a
date that is less than six months prior to the inmate's
individual's scheduled release date. The
Director of Mental Health shall also identify all individuals in
custody under the jurisdiction of the Department of Mental Health who
have convictions for sexually violent offenses as defined in
subdivisions (a) and (b) of Section 6600, and, at least six months
prior to their release, evaluate these individuals in accordance with
this section.
(2) A petition may be filed under this section if the individual
was in custody pursuant to his or her determinate prison
term, parole revocation term, or a hold placed pursuant to Section
6601.3, for any criminal matter or civil commitment
at the time the petition is filed. A petition shall not be
dismissed on the basis of a later judicial or administrative
determination that the individual's custody was unlawful, if the
unlawful custody was the result of a good faith mistake of fact or
law. For purposes of this paragraph, a person who is on parole,
or for whom a warrant of arrest is outstanding, shall be deemed to be
in the custody of the Department of Corrections and Rehabilitation.
This paragraph shall apply to any petition filed on or after
January 1, 1996.
(b) The person shall be screened by the Department of Corrections
and Rehabilitation and the Board of Parole Hearings based on whether
the person has committed a sexually violent predatory offense and on
a review of the person's social, criminal, and institutional history.
This screening shall be conducted in accordance with a structured
screening instrument developed and updated by the State Department of
Mental Health in consultation with the Department of Corrections and
Rehabilitation. If as a result of this screening it is determined
that the person is likely to be a sexually violent predator, the
Department of Corrections and Rehabilitation shall refer the person
to the State Department of Mental Health for a full evaluation of
whether the person meets the criteria in Section 6600.
(b) When the agency with jurisdiction over the confined person as
set forth in subdivision (a) determines that an individual in its
custody has committed a sexually violent offense, as defined in
subdivisions (a) and (b) of Section 6600, the department shall give
notice to the attorney designated for the county pursuant to
subdivision (i) and all agencies subject to notification under
Section 3058.6 of the Penal Code, of the result of the determination.
The agency with jurisdiction over the confined person shall promptly
refer the confined person to the State Department of Mental Health.
The State Department of Mental Health shall immediately notify the
county attorney of the referral and request that the county attorney
determine whether qualifying sexually violent offenses are predatory
for purposes of this article. Upon request by the State Department of
Mental Health, the county attorney shall determine whether prior
sexually violent offenses committed by the individual are predatory
and immediately notify the State Department of Mental Health of the
result. If a county attorney determines that an individual's prior
convictions are predatory sexually violent offenses, the State
Department of Mental Health shall conduct a full evaluation, which
includes two complete evaluations pursuant to subdivisions (c) and
(d), to determine if the individual 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.
(c) The State Department of Mental Health shall evaluate the
person in accordance with a standardized assessment protocol,
developed and updated by the State Department of Mental Health, to
determine whether the person is a sexually violent predator as
defined in this article. The standardized assessment protocol shall
require assessment of diagnosable mental disorders, as well as
various factors known to be associated with the risk of reoffense
among sex offenders. Risk factors to be considered shall include
criminal and psychosexual history, type, degree, and duration of
sexual deviance, and severity of mental disorder. The State
Department of Mental Health shall request any information in the
possession of the county attorney to assist in providing the
evaluators with all necessary information. The State Department of
Mental Health shall, upon request, immediately provide the
prosecuting agencies in subdivision (b) the status of the
case, the information being relied upon by the evaluators, the names
of the evaluators and contact information, and the reports written by
the evaluators whether the reports are positive or negative. The
evaluation reports shall be forwarded to the county attorney within
45 days from the date that the county attorney notifies the State
Department of Mental Health that an individual's sexually violent
offense is predatory.
(d) Pursuant to subdivision (c), the person 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 has a diagnosed mental disorder so that he or she is
likely to engage in acts of sexual violence without appropriate
treatment and custody, the Director of Mental Health shall forward a
request for a petition for commitment under Section 6602 to the
county designated in subdivision (i). Copies of the
evaluation reports and any other supporting documents shall be made
available to the attorney designated by the county pursuant to
subdivision (i) who may file a petition for commitment. The
State Department of Mental Health shall establish an appropriate
payment schedule for professional services of sexually violent
predator evaluators with equal payment to each evaluator for similar
services. Payments shall not be based on whether the evaluation is
positive or negative. Sufficient payment shall be made for court and
preparation time.
(e) If one of the professionals performing the evaluation pursuant
to subdivision (d) does not concur that the person meets the
criteria specified in subdivision (d), but the other professional
concludes that the person meets those criteria, the Director of
Mental Health shall arrange for further examination of the person by
two independent professionals selected in accordance with subdivision
(g).
(e) Upon completion of evaluations, the State Department of Mental
Health shall forward the full copies of the evaluation reports to
the attorney designated by the county pursuant to subdivision (i).
The designated attorney shall decide whether or not there is
sufficient admissible evidence to file a petition pursuant to
subdivision (i).
(f) If an examination by independent professionals
pursuant to subdivision (e) is conducted, a petition to request
commitment under this article shall only be filed if both independent
professionals who evaluate the person pursuant to subdivision (e)
concur that the person meets the criteria for commitment specified in
subdivision (d). The professionals selected to evaluate
the person pursuant to subdivision (g) shall inform the person that
the purpose of their examination is not treatment but to determine if
the person meets certain criteria to be involuntarily committed
pursuant to this article. It is not required that the person
appreciate or understand that information. Information provided
for these evaluations shall be available for review by both the
individual, his or her counsel, and the attorney designated by the
county pursuant to subdivision (i).
(g) Any An independent professional
who is designated by the Secretary of the Department of Corrections
and Rehabilitation or the Director of Mental Health for purposes of
this section shall not be a state government employee, shall have at
least five years of experience in the diagnosis and treatment of
mental disorders, and shall include psychiatrists and licensed
psychologists who have a doctoral degree in psychology. The
requirements set forth in this section also shall apply to any
professionals appointed by the court to evaluate the person for
purposes of any other proceedings under this article.
(h) If the State Department of Mental Health determines that the
person is a sexually violent predator as defined in this article, the
Director of Mental Health shall forward a request for a petition to
be filed for commitment under this article to the county designated
in subdivision (i). Copies of the evaluation reports and any other
supporting documents shall be made available to the attorney
designated by the county pursuant to subdivision (i) who may file a
petition for commitment in the superior court.
(h) If the attorney designated by the county pursuant to
subdivision (i) determines that an evaluation was based on
information from which material information was omitted, he or she
may request that the State Department of Mental Health provide the
additional information to the evaluators to determine if the
conclusion of the evaluation would be changed. If so, new evaluation
reports shall be prepared. The State Department of Mental Health
shall allow 30 days after forwarding the evaluation reports to the
attorney designated in subdivision (i) for input on either the facts
or methodology of the evaluation reports. If such input is received,
the State Department of Mental Health shall have 15 days to forward
this information to the evaluators to determine how it will affect
their evaluation and conclusions.
(i) If the county's designated counsel concurs with the
recommendation determines that sufficient evidence
exists for a finding that an individual is a sexually violent
predator , a petition for commitment shall be filed in the
superior court of the county in which the person was convicted of the
offense for which he or she was committed to the jurisdiction of the
Department of Corrections and Rehabilitation or the county
originating the commitment for individuals under the jurisdiction of
the State Department of Mental Health . The petition shall be
filed, and the proceedings shall be handled, by either the district
attorney or the county counsel of that county. The county board of
supervisors shall designate either the district attorney or the
county counsel to assume responsibility for proceedings under this
article.
(j) The time limits set forth in this section shall not apply
during the first year that this article is operative.
(k) 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 Article 1 (commencing with Section 3000) of Chapter 8 of
Title 1 of Part 3 of the Penal Code.
(l) Pursuant to subdivision (d), the attorney designated by the
county pursuant to subdivision (i) shall notify the State Department
of Mental Health of its decision regarding the filing of a petition
for commitment within 15 days of making that decision.
(m) This section shall become operative on the date that the
director executes a declaration, which shall be provided to the
fiscal and policy committees of the Legislature, including the
Chairperson of the Joint Legislative Budget Committee, and the
Department of Finance, specifying that sufficient qualified state
employees have been hired to conduct the evaluations required
pursuant to subdivision (d), or January 1, 2012, whichever occurs
first.
(n) The attorney designated by the county pursuant to subdivision
(i) shall have access, upon request and without cost, to all records
held by any state or local agency if the records contain information
regarding an individual who is being evaluated for eligibility as a
sexually violent predator or for whom a case has been filed or
completed. County-designated counsel may monitor the progress with
the State Department of Mental Health of individuals committed
pursuant to this article during the period of their commitment and
shall have full access to all institutional records for these
individuals. No liability of any type shall attach to an individual
or institution that provides information upon request of the county
designated attorney nor shall any liability attach to the requesting
individual or agency if the information is requested in connection
with the evaluation, presentation, or continued monitoring of a
person civilly committed pursuant to this article.
SEC. 3. Section 6608 of the Welfare and Institutions Code is
amended to read:
6608. (a) Nothing in this article shall prohibit the person who
has been committed as a sexually violent predator from petitioning
the court for conditional release or an unconditional discharge
without the recommendation or concurrence of the Director of Mental
Health. If a person has previously filed a petition for conditional
release without the concurrence of the director and the court
determined, either upon review of the petition or following a
hearing, that the petition was frivolous or that the committed person'
s condition had not so changed that he or she would not be a danger
to others in that it is not likely that he or she will engage in
sexually violent criminal behavior if placed under supervision and
treatment in the community, then the court shall deny the subsequent
petition unless it contains facts upon which a court could find that
the condition of the committed person had so changed that a hearing
was warranted. Upon receipt of a first or subsequent petition from a
committed person without the concurrence of the director, 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. The person petitioning for conditional
release and unconditional discharge under this subdivision shall be
entitled to assistance of counsel. The person petitioning for
conditional release or unconditional discharge shall serve a copy of
the petition on the State Department of Mental Health at the time the
petition is filed with the court.
(b) The court shall give notice of the hearing date to the
attorney designated in subdivision (i) of Section 6601, the retained
or appointed attorney for the committed person, and the Director of
Mental Health at least 30 court days before the hearing date.
(c) No hearing upon the petition shall be held until the person
who is committed has been under commitment for confinement and care
in a facility designated by the Director of Mental Health for not
less than one year from the date of the order of commitment.
(d) The court shall hold a hearing to determine whether the person
committed would be 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 due to his or her diagnosed mental disorder if
under supervision and treatment in the community. All rights
described in subdivision (d) of Section 6605 shall apply to this
hearing. If the court or jury at the hearing
determines that the committed person would not be a danger to others
due to his or her diagnosed mental disorder while under supervision
and treatment in the community, the court shall order the committed
person placed with an appropriate forensic conditional release
program operated by the state for one year. A substantial portion of
the state-operated forensic conditional release program shall include
outpatient supervision and treatment. The court shall retain
jurisdiction of the person throughout the course of the program. At
the end of one year, the court shall hold a hearing to determine if
the person should be unconditionally released from commitment on the
basis that, by reason of a diagnosed mental disorder, he or she is
not a danger to the health and safety of others in that it is not
likely that he or she will engage in sexually violent criminal
behavior. The court shall not make this determination until the
person has completed at least one year in the state-operated forensic
conditional release program. The court shall notify the Director of
Mental Health and the petitioner of the hearing date.
(e) Before placing a committed person in a state-operated forensic
conditional release program, the community program director
designated by the State Department of Mental Health shall submit a
written recommendation to the court stating which forensic
conditional release program is most appropriate for supervising and
treating the committed person. If the court does not accept the
community program director's recommendation, the court shall specify
the reason or reasons for its order on the record. The procedures
described in Sections 1605 to 1610, inclusive, of the Penal Code
shall apply to the person placed in the forensic conditional release
program.
(f) If the court determines that the person should be transferred
to a state-operated forensic conditional release program, the
community program director, or his or her designee, shall make the
necessary placement arrangements and, within 30 days after receiving
notice of the court's finding, the person shall be placed in the
community in accordance with the treatment and supervision plan
unless good cause for not doing so is presented to the court.
(g) If the court or jury rules against the committed
person at the trial for unconditional release from commitment, the
court or jury may place the committed person on outpatient
status in accordance with the procedures described in Title 15
(commencing with Section 1600) of Part 2 of the Penal Code.
(h) If the court or jury denies the petition to place
the person in an appropriate forensic conditional release program or
if the petition for unconditional discharge is denied, the person may
not file a new application until one year has elapsed from the date
of the denial.
(i) In any hearing authorized by this section, the petitioner
shall have the burden of proof by a preponderance of the evidence.
The c ourt or jury shall review all prior findings
and orders in the case as part of the evidence in the trial held
pursuant to this section.
Victims, as defined in subdivision (e) of Section 28 of Article I
of the California Constitution, may present relevant evidence at this
proceeding.
(j) If the petition for conditional release is not made by the
director of the treatment facility to which the person is committed,
no action on the petition shall be taken by the court without first
obtaining the written recommendation of the director of the treatment
facility.
(k) Time spent in a conditional release program pursuant to this
section shall not count toward the term of commitment under this
article unless the person is confined in a locked facility by the
conditional release program, in which case the time spent in a locked
facility shall count toward the term of commitment.
SEC. 4. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.