BILL ANALYSIS Ó
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UNFINISHED BUSINESS
Bill No: SB 760
Author: Alquist (D)
Amended: 8/20/12
Vote: 27 - Urgency
SENATE VOTES NOT RELEVANT
ASSEMBLY FLOOR : 79-0, 8/23/12 - See last page for vote
SUBJECT : Sexually violent predators: evaluations
SOURCE : Los Angeles District Attorney
Santa Clara District Attorney
DIGEST : This is a new bill. As it left the Senate, it
dealt with the Cal Grant Program. Those provisions were
deleted in the Assembly.
As amended, this bill 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.
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ANALYSIS :
Existing law:
1. Provides that if the attorney petitioning for commitment
of an SVP
determines that updated evaluations are necessary in
order to properly present the case for commitment, the
attorney may request the Department of Mental Health
(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.
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.
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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/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/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 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
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person is an SVP.
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 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"
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Assembly Appropriation Committee:
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.
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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.
SUPPORT : (Verified 8/27/12)
Los Angeles District Attorney (co-source)
Santa Clara District Attorney (co-source)
California District Attorneys Association
Peace Officers Research Association of California
ASSEMBLY FLOOR : 79-0, 8/23/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson,
Donnelly, Eng, Feuer, Fletcher, Fong, Fuentes, Furutani,
Beth Gaines, Galgiani, Garrick, Gatto, Gordon, Gorell,
Grove, Hagman, Halderman, Hall, Harkey, Hayashi, Hill,
Huber, Hueso, Huffman, Jeffries, Jones, Knight, Lara,
Logue, Bonnie Lowenthal, Ma, Mansoor, Mendoza, Miller,
Mitchell, Monning, Morrell, Nestande, Nielsen, Norby,
Olsen, Pan, Perea, V. Manuel Pérez, Portantino, Silva,
Skinner, Smyth, Solorio, Swanson, Torres, Valadao,
Wagner, Wieckowski, Williams, Yamada, John A. Pérez
NO VOTE RECORDED: Roger Hernández
RJG:m 8/27/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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