BILL ANALYSIS Ó SB 760 Page 1 SENATE THIRD READING SB 760 (Alquist and Pavley) As Amended August 20, 2012 2/3 vote. Urgency SENATE VOTE :30-9 PUBLIC SAFETY 6-0 APPROPRIATIONS 17-0 ----------------------------------------------------------------- |Ayes:|Ammiano, Knight, Cedillo, |Ayes:|Gatto, Harkey, | | |Hagman, Mitchell, Skinner | |Blumenfield, Bradford, | | | | |Charles Calderon, Campos, | | | | |Davis, Donnelly, Fuentes, | | | | |Hall, Hill, Cedillo, | | | | |Mitchell, Nielsen, Norby, | | | | |Solorio, Wagner | ----------------------------------------------------------------- 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 and the evaluator has not entered into a new contract to continue as an evaluator on the case except in the instance 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 SB 760 Page 2 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. 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. 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. 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. 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 SB 760 Page 3 under the age of 14 involving substantial sexual conduct. 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. 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. 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. 9)Requires a jury trial at the request of either party with a determination beyond a reasonable doubt that the person is a SVP. FISCAL EFFECT : According to the Assembly Appropriation Committee: 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 DSH is in the process of replacing contract evaluators with state employee evaluators. 2)Unknown, moderate General Fund 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 : 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. SB 760 Page 4 "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 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" Please see the policy committee analysis for a full discussion of this bill. Analysis Prepared by : Gregory Pagan / PUB. S. / (916) 319-3744 FN: 0005000