BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 760
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          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
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            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
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            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
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          "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