BILL ANALYSIS Ó
SB 760
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Date of Hearing: June 26, 2012
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 760 (Alquist) - As Amended: June 28, 2012
SUMMARY : Authorizes an attorney petitioning for the commitment
of a sexually violent predator (SVP) to request the Department
of State Hospitals (DSH) to perform a replacement evaluation if
the evaluator "is no longer able to testify for the petitioner
in court proceedings" as a result of the retirement or
resignation of the evaluator, unless the evaluator has opined
that the individual named in the petition has not met the
criteria for commitment, as specified.
EXISTING LAW :
1)Provides that if the attorney petitioning for commitment of a
SVP determines that updated evaluations are necessary in order
to properly present the case for commitment, the attorney may
request the DMH to perform updated evaluations. If one or
more of the original evaluators is no longer available to
testify for the petitioner in court proceedings, the attorney
petitioning for commitment under this article may request the
DMH to perform replacement evaluations. When a request is
made for updated or replacement evaluations, the DMH shall
perform the requested evaluations and forward them to the
petitioning attorney and to the counsel for the person subject
to this article. However, updated or replacement evaluations
shall not be performed except as necessary to update one or
more of the original evaluations or to replace the evaluation
of an evaluator who is no longer available to testify for the
petitioner in court proceedings. These updated or replacement
evaluations shall include review of available medical and
psychological records, including treatment records,
consultation with current treating clinicians, and interviews
of the person being evaluated, either voluntarily or by court
order. If an updated or replacement evaluation results in a
split opinion as to whether the person subject to the SVP
proceedings meets the criteria for commitment, the DMH shall
conduct two additional evaluations, as specified. ÝWelfare
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and Institutions Code Section 6603(c)(1).]
2) Defines "no longer able to testify for the petitioner in
court proceedings" as the evaluator is no longer authorized by
the DMH to perform evaluations of SVPs as a result of any of
the following:
a) The evaluator has failed to adhere to the protocol of
the DMH.
b) The evaluator's license has been suspended or revoked.
c) The evaluator is legally unavailable, as specified.
ÝWelfare and Institutions Code Section 6603(c)(2).]
3)Provides that a prisoner found to be a SVP could be civilly
confined based on a judicial commitment. A "SVP" is defined
as a person who has been convicted of a sexually violent
offense, as specified, against one or more victims for whom he
or she received a determinate sentence. A SVP must have a
diagnosable 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.
ÝWelfare and Institutions Code Sections 6600 to 6608.]
4)Defines "sexually violent offenses" as specified sexual acts
(rape or spousal rape, sex crimes in concert, lewd conduct
with a child under 14 years of age, foreign or unknown object
rape, sodomy and oral copulation) committed by force,
violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person. ÝWelfare and
Institutions Code Section 6600(b).]
5)Further defines a "sexually violent offense" as any rape or
spousal rape, sex crimes in concert, foreign or unknown object
rape, sodomy and oral copulation committed against a child
under the age of 14 involving substantial sexual conduct.
(Welfare and Institutions Code Section 6600.1.)
6)Defines "predatory" as an act directed toward a stranger, a
person or 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. ÝWelfare and Institutions Code Section
6600(e).]
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7)Provides that when the Director of the California Department
of Corrections determines that an individual who is in his or
her custody may be a SVP, the Director must refer the person
to DMH for evaluation. (Welfare and Institutions Code Section
6601.)
8)Provides for a hearing procedure to determine whether there is
probable cause to believe that a person who is the subject of
a petition for civil commitment as a SVP is likely to engage
in sexually violent predatory criminal behavior upon his or
her release from prison. (Welfare and Institutions Code
Section 6602.)
9)Requires a jury trial at the request of either party with a
determination beyond a reasonable doubt that the person is a
SVP. (Welfare and Institutions Code Section 6603.)
FISCAL EFFECT : Unknown
COMMENTS : According to the author, "In SVP cases, Welfare and
Institutions Code Section 6603(c) allows the district attorney
or county counsel to request a replacement evaluator from the
DMH when the current evaluator is 'unavailable' for certain
reasons. The statute does address replacing an evaluator who
resigns or retires.
"A number of SVP evaluators have recently resigned from the DMH
panel and will not contract with the DMH to finish their pending
cases throughout the state. In those cases, some trail courts
have not allowed the prosecutor to request a replacement
evaluator from the DMH; and some courts are considering denying
the prosecutor the opportunity to present the testimony of the
replacement evaluator at trial. The issue centers on whether
the evaluator is considered 'unavailable' by the current
definition.
"It is essential to the prosecution of SVP cases that the
opinion of at least one evaluator is presented at a probable
cause hearing or trial through the testimony of the evaluator.
It is preferable to proceed to trial with two evaluations since
the prosecution's burden of proof in an SVP petition is beyond a
reasonable doubt.
"SB 760 seeks to amend Welfare and Institutions Code Section
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6603(c)(2) by adding retired or resigned evaluators to the list
of circumstance that permit a prosecutor to request DMH to
perform a replacement evaluation"
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County District Attorney's Office (Sponsor)
California District Attorneys Association
Santa Clara County District Attorney's Office
Crime Victims United of California
Opposition
None
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744