Amended in Senate July 2, 2014

Amended in Assembly May 6, 2014

Amended in Assembly March 24, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1607

Introduced by Assembly Member Fox

February 5, 2014

An act to amend Sections 6608 and 6608.5 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. begin insert Existing law requires a person who is conditionally released pursuant these provisions to be placed in the county of the domicile of the person prior to the person’s incarceration, unless the court finds that extraordinary circumstances require placement outside the county of domicile. end insert

This bill would recast these provisions to require the court, if it determines that the petition is not frivolous, to give notice of the court’s intention to conduct a conditional release hearing. The bill would require the person petitioning for conditional release, the Director of State Hospitals, and the designated attorney of the county of commitment to notify the court within 30 court days of receipt of this notice if it appears that a county other than the county of commitment may be the county of domicile. The bill would provide that the court’s determination of the county of domicile would begin delete be final, end delete begin insert govern the current petition for conditional release, end insert and would apply to begin delete further hearings pertaining to end delete begin insert any subsequent petitions for end insert conditional release. The bill would require that after determining the county of domicile, the court set a date for the conditional release hearing and provide notice, as specified. The bill would authorize begin delete the county of domicile to elect to represent the state at the conditional release hearing. end delete begin insert the designated attorney for the county of domicile and the designated attorney for the county of commitment, as defined, to mutually agree that the designated attorney for the county of domicile will represent the state at the conditional release hearing if the county of domicile is different than the county of commitment. If the designated attorneys do not make that agreement, the bill would provide that the designated attorney for the county of commitment will represent the state at the conditional release hearing, as specified. end insert The bill would provide that if the committed person has been conditionally released in a county other than the county of commitment, the jurisdiction of the person would, upon request of the designated begin delete counsel end delete begin insert attorney end insert of the county of placement, be transferred to the court of the county of placement. begin insert The bill would additionally require that a person who is conditionally released pursuant these provisions be placed in the county of the domicile of the person prior to the person’s incarceration, unless the designated county of placement was given prior notice and an opportunity to comment on the proposed placement of the committed person in the county, as specified. end insert

By imposing additional duties on counties in regard to conditional releases of committed persons, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program:  begin delete no end delete begin insert yes end insert .

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 shall be permitted to 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 in all hearings under this section. 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) The procedure for a conditional release hearing in a case
where the county of domicile has not yet been determined shall
be as follows:

(1) If the court deems the petition not frivolous pursuant to
subdivision (a), the court shall give notice to the attorney
designated in subdivision (i) of Section 6601, the retained or
appointed attorney for the committed person, and the Director of
State Hospitals of its intention to set a conditional release hearing.
The person petitioning for conditional release, the Director of State
Hospitals, and the designated attorney of the county of commitment
shall notify the court within 30 court days of receipt of this notice
if it appears that a county other than the county of commitment
may be the county of domicile.

(2) If no county other than the county of commitment appears
to be the county of domicile, the court shall determine, consistent
with Section 6608.5, that the county of commitment is the county
of domicile.

(3) If it appears or there are allegations that one or more
counties, other begin delete then end delete begin insert than end insert the county of commitment, may be the
county of domicile, the court shall set a hearing to determine the
county of domicile, consistent with the provisions of Section
6608.5. The court shall, at least 30 court days prior to the hearing,
give notice of the domicile hearing to the persons listed in
paragraph (1) and to the designated attorney for any county that
is alleged to be the county of domicile. Persons listed in this
paragraph and paragraph (1) may, at least 10 begin insert court end insert days prior to
the hearing, file and serve declarations, documentary evidence,
and other pleadings, that are specific only to the issue of domicile.
The court may, consistent with Section 6608.5, decide the issue
of domicile solely on the pleadings, or additionally permit, in the
interests of justice, argument and testimony.

(4) After determining the county of domicile pursuant to
paragraph begin insert (2) or end insert (3), the court shall set a date for a conditional
release hearing and shall give notice of the hearing at least 30 court
days before the hearing to the persons described in paragraph (1)
and the designated attorney for the county of domicile.

begin delete

(5) In a hearing under paragraph (4), the designated attorney of
the county of domicile shall have the right to represent the state
at the conditional release hearing. If the designated attorney for
the county of domicile elects to represent the state at the conditional
release hearing, the designated attorney shall give notice at least
20 days before the conditional release hearing to the parties listed
in paragraph (1) and to the court. If the election is made to represent
the state, the designated attorney for the county of commitment
shall cooperate with the designated attorney for the county of
domicile but will not appear at the hearing on behalf of the state,
except in the case where the county of commitment and the county
of domicile are the same.

end delete begin insert

(5) (A) If the county of domicile is different than the county of
commitment, the designated attorney for the county of domicile
and the designated attorney for the county of commitment may
mutually agree that the designated attorney for the county of
domicile will represent the state at the conditional release hearing.
If the designated attorneys do not make this agreement, the
designated attorney for the county of commitment will represent
the state at the conditional release hearing.

end insert begin insert

(B) At least 20 court days before the conditional release hearing,
the designated attorney for the county of commitment shall give
notice to the parties listed in paragraph (1) and to the court
whether the state will be represented by the designated attorney
of the county of domicile or the designated attorney of the county
of commitment.

end insert begin insert

(C) The designated attorney for the county of domicile and the
designated attorney for the county of commitment should cooperate
with each other to ensure that all relevant evidence is submitted
on behalf of the state. No attorney other than the designated
attorney for the county representing the state shall appear on
behalf of the state at the conditional release hearing.

end insert

(6) The court’s determination of a county of domicile shall begin delete be
final and shall apply to future proceedings under this article. end delete begin insert govern
the current and any subsequent petition for conditional release
under this section. end insert

(7) For the purpose of this subdivision, the term “county of
domicile” shall have the same meaning as defined in Section
6608.5.

(8) For purposes of this section, the term “designated begin delete attorney” end delete
begin insert attorney of the county of commitment” end insert means the attorney
designated in subdivision (i) of Section begin delete 6601. end delete begin insert 6601 in the county
of commitment. end insert

begin insert

(9) For purposes of this section, the term “designated attorney
for the county of domicile” means the attorney designated in
subdivision (i) of Section 6601 in the county of domicile.

end insert

(c) The proceedings for a conditional release hearing in a case
where the court has previously determined the county of domicile
shall be as follows:

(1) If the court determines, pursuant to subdivision (a), that the
petition is not frivolous, the court shall give notice of the hearing
date at least 30 days prior to the hearing to the designated attorneys
for the county of domicile and the county of commitment, the
retained or appointed attorney for the petitioner, and the Director
of State Hospitals.

(2) Representation of the state at the conditional release hearing
shall be pursuant to paragraph (5) of subdivision (b).

(d) (1) If a committed person has been conditionally released
by a court to a county other than the county of domicile, and the
jurisdiction of the person has been transferred to that county,
pursuant to subdivision (g) of Section 6608.5, the notice specified
in paragraph (1) of subdivision (c) shall be given to the designated
attorney of the county of placement who shall represent the state
in any further proceedings.

(2) The term “county of placement” means the county where
the court has placed a person who is granted conditional release.

(e) 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.

(f) 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.
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.

(g) 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 paragraph (5) of subdivision (b)
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, except as
provided in subdivision (g) of Section 6608.5.

(h) 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.

(i) 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.

(j) 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.

(k) 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.

(l) Time spent in a conditional release program pursuant to this
section shall not count toward the term of commitment under this
article unless the person is confined in a locked facility by the
conditional release program, in which case the time spent in a
locked facility shall count toward the term of commitment.

(m) 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, unless begin delete the court finds
that extraordinary circumstances require placement outside the
county of domicile. end delete begin insert both of the following conditions are satisfied: end insert

begin insert

(1) The court finds that extraordinary circumstances require
placement outside the county of domicile.

end insert begin insert

(2) The designated county of placement was given prior notice
and an opportunity to comment on the proposed placement of the
committed person in the county, according to procedures set forth
in Section 6609.1.

end insert

(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
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.

(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.

(g) If the committed person has been conditionally released in
a county other than the county of commitment, the jurisdiction of
the person shall, upon request of the designated begin delete counsel end delete begin insert attorney end insert
of the county of placement, be transferred to the court of the county
of placement.

SEC. 3.  

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.