BILL NUMBER: AB 1607 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 24, 2014
INTRODUCED BY Assembly Member Fox
FEBRUARY 5, 2014
An act to amend Section Sections
6608 , 6608.5, and 6608.8 of the Welfare and Institutions
Code, relating to sexually violent predators.
LEGISLATIVE COUNSEL'S DIGEST
AB 1607, as amended, Fox. Sexually violent predators.
Existing law provides for the civil commitment of criminal
offenders who have been determined to be sexually violent predators
for treatment in a secure state hospital facility, as specified.
Existing law requires the Secretary of the Department of Corrections
and Rehabilitation to refer a prisoner for evaluation by the State
Department of State Hospitals when the secretary determines that the
person may be a sexually violent predator and specifies the judicial
processes necessary for civil commitment as a sexually violent
predator, including, but not limited to, the right to a jury trial.
Existing law establishes provisions by which a committed person may
petition for conditional release. Existing law requires the court, if
it decides a petition for conditional release is not frivolous, to
give notice, as specified, at least 30 court days prior to the
hearing date for the petition.
This bill would instead require the court to give notice of the
petition hearing at least 35 court days prior to the hearing date.
This bill would additionally require the person petitioning for
conditional release to list the county or counties of potential
domicile to which the petitioner wishes to be conditionally released,
and the reasons why each county is chosen for that purpose by the
petitioner. The bill would require the court to provide notice of the
hearing to a designated attorney from each potential domicile
county, who would be authorized to be present, conduct an examination
of witnesses, and present evidence at the conditional release
hearing.
Existing law provides that a person who is conditionally released
be placed in the county that was the county of domicile of the person
prior to the person's incarceration for the commitment offense,
unless the court finds that extraordinary circumstances require
placement outside the county of domicile.
The bill would require the court, upon determining that the
person is to be placed in a forensic conditional release program, to
set a hearing for the determination of the county of domicile. The
bill would require the court to notify designated attorneys from the
committing county and each county of potential domicile of that
hearing at least 15 calendar days prior to the hearing. The bill
would authorize the attorneys to examine witnesses regarding the
appropriateness of domicile of the conditionally released person in
the attorney's county. The bill would require the court to make a
determination of the county of domicile based on specified criteria.
Existing law requires the terms and conditions of conditional
release to be drafted to include reasonable flexibility to achieve
the aims of conditional release, and to protect the public and the
conditionally released person.
The bill would additionally require a conditionally released
person, during the term of the conditional release, to submit his or
her person and property to search and seizure at any time, day or
night, by any law enforcement officer or peace officer, with or
without probable cause or reasonable suspicion.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6608 of the Welfare and Institutions Code is
amended to read:
6608. (a) A person who has been committed as a sexually violent
predator may petition the court for conditional release with or
without the recommendation or concurrence of the Director of State
Hospitals. If a person has previously filed a petition for
conditional release without the concurrence of the director and the
court determined, either upon review of the petition or following a
hearing, that the petition was frivolous or that the committed person'
s condition had not so changed that he or she would not be a danger
to others in that it is not likely that he or she will engage in
sexually violent criminal behavior if placed under supervision and
treatment in the community, the court shall deny the subsequent
petition unless it contains facts upon which a court could find that
the condition of the committed person had so changed that a hearing
was warranted. Upon receipt of a first or subsequent petition from a
committed person without the concurrence of the director, the court
shall endeavor whenever possible to review the petition and determine
if it is based upon frivolous grounds and, if so, shall deny the
petition without a hearing. The person petitioning for conditional
release under this subdivision shall be entitled to assistance of
counsel. The person petitioning for conditional release shall be
required to list the county or counties of potential domicile to
which the petitioner wishes to be conditionally released, and the
reasons why each county is chosen for that purpose by the petitioner.
The person petitioning for conditional release shall serve a
copy of the petition on the State Department of State Hospitals at
the time the petition is filed with the court.
(b) If the court deems the petition not frivolous pursuant to
subdivision (a), the court shall give notice of the hearing date to
the attorney designated in subdivision (i) of Section 6601 from
the committing county and to the designated attorney from each county
of potential domicile , the retained or appointed attorney for
the committed person, and the Director of State Hospitals at least
35 30 court days before the hearing
date. Each designated attorney shall have the right to be
present, conduct an examination of witnesses, and present
evidence at the conditional release hearing. The
designated attorney from the committing county shall make the
committing county's case file on the petitioner available to the
designated attorney from each county of potential domicile at least
30 court days before the date of the hearing.
(c) If the petition for conditional release is made without the
consent of the director of the treatment facility, no action shall be
taken on the petition by the court without first obtaining the
written recommendation of the director of the treatment facility.
(d) No A hearing upon the
petition shall not be held until the person who is
committed has been under commitment for confinement and care in a
facility designated by the Director of State Hospitals for not less
than one year from the date of the order of commitment. No
A hearing upon the petition shall not
be held until the community program director designated by the State
Department of State Hospitals submits a report to the court that
makes a recommendation as to the appropriateness of placing the
person in a state-operated forensic conditional release program.
(e) The court shall hold a hearing to determine whether the person
committed would be 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 due to his or her diagnosed mental disorder if
under supervision and treatment in the community. The attorney
designated pursuant to subdivision (i) of Section 6601 shall
represent the state and shall have the committed person evaluated by
experts chosen by the state. The committed person shall have the
right to the appointment of experts, if he or she so requests. If the
court at the hearing determines that the committed person would not
be a danger to others due to his or her diagnosed mental disorder
while under supervision and treatment in the community, the court
shall order the committed person placed with an appropriate forensic
conditional release program operated by the state for one year. A
substantial portion of the state-operated forensic conditional
release program shall include outpatient supervision and treatment.
The court shall retain jurisdiction of the person throughout the
course of the program.
(f) Before placing a committed person in a state-operated forensic
conditional release program, the community program director
designated by the State Department of State Hospitals shall submit a
written recommendation to the court stating which forensic
conditional release program is most appropriate for supervising and
treating the committed person. If the court does not accept the
community program director's recommendation, the court shall specify
the reason or reasons for its order on the record. The procedures
described in Sections 1605 to 1610, inclusive, of the Penal Code
shall apply to the person placed in the forensic conditional release
program.
(g) If the court determines that the person should be transferred
to a state-operated forensic conditional release program, the
community program director, or his or her designee, shall make the
necessary placement arrangements and, within 30 days after receiving
notice of the court's finding, the person shall be placed in the
community in accordance with the treatment and supervision plan
unless good cause for not doing so is presented to the court.
(h) If the court denies the petition to place the person in an
appropriate forensic conditional release program, the person may not
file a new application until one year has elapsed from the date of
the denial.
(i) In a hearing authorized by this section, the committed person
shall have the burden of proof by a preponderance of the evidence,
unless the report required by Section 6604.9 determines that
conditional release to a less restrictive alternative is in the best
interest of the person and that conditions can be imposed that would
adequately protect the community, in which case the burden of proof
shall be on the state to show, by a preponderance of the evidence,
that conditional release is not appropriate.
(j) Time spent in a forensic conditional release
program pursuant to this section shall does
not count toward the term of commitment under this article
unless the person is confined in a locked facility by the
forensic conditional release program, in which case the time
spent in a locked facility shall count toward the term of commitment.
(k) After a minimum of one year on conditional release, the
committed person, with or without the recommendation or concurrence
of the Director of State Hospitals, may petition the court for
unconditional discharge. The court shall use the procedures described
in subdivisions (a) and (b) of Section 6605 to determine if the
person should be unconditionally discharged from commitment on the
basis that, by reason of a diagnosed mental disorder, he or she is no
longer a danger to the health and safety of others in that it is not
likely that he or she will engage in sexually violent criminal
behavior.
SEC. 2. Section 6608.5 of the Welfare
and Institutions Code is amended to read:
6608.5. (a) A person who is conditionally released pursuant to
this article shall be placed in the county of the domicile of the
person prior to the person's incarceration for the commitment
offense , unless the court finds that extraordinary
circumstances require placement outside the county of domicile.
The court shall, upon determining that the person shall be placed in
a forensic conditional release program, set a hearing for the
determination of the county of domicile. The court shall notify the
attorney designated in subdivision (i) of Section 6601 from the
committing county and the designated attorney from each
county of potential domicile, of the date of the hearing at least 15
calendar days before the date of the hearing. Each of these attorneys
shall be allowed to conduct an examination of witnesses, regarding
the appropriateness of domicile in the attorney's county. The court
shall determine the county of domicile after the presentation of
evidence, if any, by the designated attorneys. The court's
determination shall be based on the factors set forth in subdivisions
(b) and (c). If the county of domicile is different than the county
of commitment, jurisdiction of the person shall be transferred to the
county of conditional release placement.
(b) (1) For the purposes of this section, "county of domicile"
means the county where the person has his or her true, fixed, and
permanent home and principal residence and to which he or she ,
prior to the most recent commitment offense, has
manifested the intention of returning whenever he or she is absent.
For the purposes of determining the county of domicile, the court may
consider information found on a California driver's license,
California identification card, recent rent or utility receipt,
printed personalized checks or other recent banking documents showing
that person's name and address, or information contained in an
arrest record, probation officer's report, trial transcript, or other
court document. If no information can be identified or verified, the
county of domicile of the individual shall be considered to be the
county in which the person was arrested for the crime for which he or
she was last incarcerated in the state prison or from which
he or she was last returned from parole prison
.
(2) In a case where the person committed a crime while being held
for treatment in a state hospital, or while being confined in a state
prison or local jail facility, the county wherein that facility was
located shall not be considered the county of domicile unless the
person resided in that county prior to being housed in the hospital,
prison, or jail.
(c) For the purposes of this section, "extraordinary circumstances"
means circumstances that would inordinately limit the department's
ability to effect conditional release of the person in the county of
domicile in accordance with Section 6608 or any other provision of
this article, and the procedures described in Sections 1605 to 1610,
inclusive, of the Penal Code.
(d) The county of domicile shall designate a county agency or
program that will provide assistance and consultation in the process
of locating and securing housing within the county for persons
committed as sexually violent predators who are about to be
conditionally released under Section 6608. Upon notification by the
department of a person's potential or expected conditional release
under Section 6608, the county of domicile shall notify the
department of the name of the designated agency or program, at least
60 days before the date of the potential or expected release.
(e) In recommending a specific placement for community outpatient
treatment, the department or its designee shall consider all of the
following:
(1) The concerns and proximity of the victim or the victim's next
of kin.
(2) The age and profile of the victim or victims in the sexually
violent offenses committed by the person subject to placement. For
purposes of this subdivision, the "profile" of a victim includes, but
is not limited to, gender, physical appearance, economic background,
profession, and other social or personal characteristics.
(f) Notwithstanding any other provision of law, a person released
under this section shall not be placed within one-quarter mile of any
public or private school providing instruction in kindergarten or
any of grades 1 to 12, inclusive, if either of the following
conditions exist:
(1) The person has previously been convicted of a violation of
Section 288.5 of, or subdivision (a) or (b), or paragraph (1) of
subdivision (c) of Section 288 of, the Penal Code.
(2) The court finds that the person has a history of improper
sexual conduct with children.
SEC. 3. Section 6608.8 of the Welfare
and Institutions Code is amended to read:
6608.8. (a) For any person who is proposed for community
outpatient treatment under the forensic conditional release program,
the department shall provide to the court a copy of the written
contract entered into with any public or private person or entity
responsible for monitoring and supervising the patient's outpatient
placement and treatment program. This subdivision does not apply to
subcontracts between the contractor and clinicians providing
treatment and related services to the person.
(b) The terms and conditions of conditional release shall be
drafted to include reasonable flexibility to achieve the aims of
conditional release, and to protect the public and the conditionally
released person. In order to protect the public and the
conditionally released person, the person shall, during the term of
the conditional release, submit his or her person and property to
search and seizure at any time, day or night, by any law enforcement
officer or peace officer, with or without probable cause or
reasonable suspicion.
(c) The court in its discretion may order the department to,
notwithstanding Section 4514 or 5328, provide a copy of the written
terms and conditions of conditional release to the sheriff or chief
of police, or both, that have jurisdiction over the proposed or
actual placement community.
(d) (1) Except in an emergency, the department or its designee
shall not alter the terms and conditions of conditional release
without the prior approval of the court.
(2) The department shall provide notice to the person committed
under this article and the district attorney or designated county
counsel of any proposed change in the terms and conditions of
conditional release.
(3) The court on its own motion, or upon the motion of either
party to the action, may set a hearing on the proposed change. The
hearing shall be held as soon as is practicable.
(4) If a hearing on the proposed change is held, the court shall
state its findings on the record. If the court approves a change in
the terms and conditions of conditional release without a hearing,
the court shall issue a written order.
(5) In the case of an emergency, the department or its designee
may deviate from the terms and conditions of the conditional release
if necessary to protect public safety or the safety of the person. If
a hearing on the emergency is set by the court or requested by
either party, the hearing shall be held as soon as practicable. The
department, its designee, and the parties shall endeavor to resolve
routine matters in a cooperative fashion without the need for a
formal hearing.
(e) Notwithstanding any provision of this section, including, but
not limited to, subdivision (d), matters concerning the residential
placement, including any changes or proposed changes in the residence
of the person, shall be considered and determined pursuant to
Section 6609.1.