BILL ANALYSIS Ó
SB 760
Page 1
Date of Hearing: August 8, 2012
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
SB 760 (Alquist) - As Amended: August 6, 2012
Policy Committee: Public
SafetyVote: 6-0
Urgency: Yes State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill adds evaluators who have resigned or retired to the
definition of "no longer available to testify for the petitioner
in court proceedings" in cases in which an attorney petitioning
for the commitment of a sexually violent predator (SVP) requests
the Department of State Hospitals (DSH) to update an offender
evaluation.
This expanded definition allows DHS to use replacement
evaluators to update the psychological evaluation as requested
in cases where the original evaluators have retired or resigned.
FISCAL EFFECT
1)DSH states any additional costs as a result of specifying that
replacement evaluators may be used for evaluators who have
resigned or retired will be minor and absorbable, as the
department is in the process of replacing contract evaluators
with state employee evaluators.
2)Unknown, moderate GF costs, potentially in the hundreds of
thousands of dollars to the extent unavailable evaluators
result in fewer SVP state hospital commitments, at a cost of
about $100,000 per year.
COMMENTS
1)Rationale. In SVP cases, statute allows the district attorney
or county counsel to request a replacement evaluator from the
DSH when one or both of the original evaluators are
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unavailable for specified reasons. The statute does not
address replacing an evaluator who resigns or retires.
According to the author and the sponsor, the L.A. District
Attorney's Office, over the past two years some 40 SVP
evaluators have resigned and will not contract with the DSH to
finish their pending cases throughout the state. (Contract
evaluators are resigning as DSH endeavors to replace contract
employees with state employees. A 2008 State Personnel Board
decision ordered DSH to use civil service rather than
contracts for these positions.) In these cases, some trial
courts have not allowed the prosecutor a replacement
evaluator, 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 "no longer available to testify
for the petitioner" by the current statutory definition.
This bill adds resignation and retirement to the current
statutory definition of unavailability.
According to the author, "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
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"
2)Support. The L.A. District Attorney's Office states, "SB 760
is urgently needed to assure that sexually violent predators
(SVPs) are not released in the community in the next few
months. Under current law, cases must be dismissed when mental
health evaluators resign and are no longer available to
testify. Evaluators for 130 SVP cases have recently resigned,
causing the dismissal of two cases and placing numerous
pending cases at risk of dismissal."
3)The DSH Sex Offender Commitment Program , which began in 1996,
defines an SVP as a person who has been convicted of a
specified sexually violent offense against one or more
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persons, who has a diagnosed mental disorder that makes the
person a danger to the health or safety of others. When CDCR
determines an inmate may be an SVP, the CDRC director refers
the person to DSH for evaluation. A hearing is held to
determine whether there is probable cause to believe a person
who is the subject of a petition for civil commitment as an
SVP is likely to engage in sexually violent predatory criminal
behavior upon release. If so determined, there is a jury trial
to determine whether beyond a reasonable doubt the person is
an SVP. Upon such a finding, the person is held for two years,
with annual reviews, or until the Director of DSH finds the
person is no longer likely to commit a sexually violent
offense.
Since the advent of the program, 45,539 offenders have been
referred to DSH for SVP evaluation (as of July, 2011). Of this
number: 1,820 met the clinical evaluation requirement and were
referred to district attorneys, 1,274 were found to have
probable cause; 358 have a trial pending, and 717 have been
committed to the program.
(The criteria for SVP evaluation has broadened significantly
since 1996, largely via Proposition 83 (2006), also known as
Jessica's Law, with no increase in the number of offenders
ultimately found to be SVPs, following lengthy and costly
evaluations.)
4)This bill has not been heard in the Senate. It was a gut and
amend in the Assembly Public Safety Committee on June 18,
2012.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081