BILL ANALYSIS                                                                                                                                                                                                    Ó




                                                                  AB 1607
                                                                  PageA
          Date of Hearing:  April 29, 2014
          Counsel:       Shaun Naidu


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                     AB 1607 (Fox) - As Amended:  March 24, 2014
                       As Proposed to be Amended in Committee


           SUMMARY  :  Requires, prior to the court holding a conditional  
          release hearing for a person committed to the Department of  
          State Hospitals (DSH) as a sexually-violent predator (SVP), the  
          court to determine the SVP's county of domicile, as specified,  
          and allows the designated attorney of the determined county of  
          domicile to elect to represent the state at the conditional  
          release hearing.  Specifically,  this bill  :

          1)Provides that a person petitioning for conditional release is  
            entitled to assistance of counsel in the conditional release  
            and county of domicile hearings.

          2)Provides that the procedure for a conditional release hearing  
            in a case in which the county of domicile has not yet been  
            determined by the court to proceed as follows:

             a)   Requires the court, upon deeming that a conditional  
               release petition is not frivolous, to provide notice to the  
               attorney for the committed person, the designated attorney  
               for the county of commitment, and the Director of State  
               Hospitals of its intent to set a conditional release  
               hearing, and requires these entities to notify the court  
               within 30 court days of receiving the notice of intent if  
               it is alleged that a county other than the county of  
               commitment is the domicile county.

             b)   Requires the court to deem the county of commitment as  
               the county of domicile and set a date for the conditional  
               release hearing, with at least 30 court days notice, as  
               specified, if no county, other than the county of  
               commitment, is alleged to be the county of domicile.

             c)   Requires the court to hold a hearing to determine the  
               county of domicile if one or more county, other than the  









                                                                  AB 1607
                                                                  PageB
               county of commitment, is alleged to be the county of  
               domicile.  Allows the designated attorney for any alleged  
               county of domicile, the attorney for the county of  
               commitment, the attorney for the petitioner, and the  
               Director of State Hospitals to file and serve declarations,  
               documentary evidence, and other pleadings, specific to the  
               issue of domicile only, at least 10 court days prior to the  
               hearing.  Allows the court, in its discretion, to decide  
               the issue of domicile based upon the pleadings alone or  
               permit such additional argument and testimony as is in the  
               interest of justice.

             d)   Requires the court, after determining county of  
               domicile, to set a date for a conditional release hearing  
               and give notice of the hearing, as specified, including to  
               the designated attorney for the county of domicile at least  
               30 court days before the date of the hearing.

             e)   Provides that the designated attorney of the domicile  
               county has the right to represent the state at the  
               conditional release hearing, and to provide notice to  
               parties, as specified, if he or she elects to do so.   
               Requires the designated attorney for the commitment county  
               to cooperate with the designated attorney for the domicile  
               county if this election is made.

             f)   Provides that the court's determination of a county of  
               domicile is final and applies to future proceedings  
               relative to the commitment or release of a SVP.

          3)Provides that the procedure for a conditional release hearing  
            in a case in which the county of domicile has not yet been  
            determined by the court to proceed as follows:

             a)   Requires the court, upon deeming that a conditional  
               release petition is not frivolous, to provide notice to the  
               attorney for the committed person, the designated attorney  
               for the county of commitment, and the Director of State  
               Hospitals of the date of the conditional release hearing at  
               least 30 days prior to the hearing.

             b)   Provides that representation of the state at the  
               conditional release hearing is by the designated attorney  
               for the domicile county, if he or she so elects; otherwise  
               the designated attorney for the commitment county will  









                                                                  AB 1607
                                                                  PageC
               represent the state.

          4)Provides, 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, the notice required for a  
            subsequent conditional release hearing is to be given to the  
            designated attorney of the county of placement, who will  
            represent the state in any further proceedings.

          5)Provides that if the committed person has been placed on  
            conditional release in a county other than the county of  
            commitment, jurisdiction of the person shall, upon the request  
            of the designated attorney of the county of placement, be  
            transferred to that county.

          6)Defines specified terms.

           EXISTING LAW  : 

          1)Provides for the civil commitment for psychiatric and  
            psychological treatment of a prison inmate found to be a SVP  
            after the person has served his or her prison commitment.   
            (Welf. & Inst. Code, § 6600, et seq.)

          2)Defines a "sexually violent predator" as "a person who has  
            been convicted of a sexually violent offense against at least  
            one victim, and who has a diagnosed 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."  (Welf. & Inst. Code, § 6600, subd.  
            (a)(1).)

          3)Permits a person committed as a SVP to be held for an  
            indeterminate term upon commitment.  (Welf. & Inst. Code, §  
            6604.1.)

          4)Requires that a person found to have been a SVP and committed  
            to the DSH have a current examination on his or her mental  
            condition made at least yearly.  The report shall include  
            consideration of conditional release to a less restrictive  
            alternative or an unconditional release is in the best  
            interest of the person and also what conditions can be imposed  
            to adequately protect the community.  (Welf. & Inst. Code, §  
            6604.9.)









                                                                  AB 1607
                                                                  PageD

          5)Allows a SVP to seek conditional release with the  
            authorization of the Director of State Hospitals when DSH  
            determines that the person's condition has so changed that he  
            or she no longer meets the SVP criteria, or when conditional  
            release is in the person's best interest and conditions to  
            adequately protect the public can be imposed.  (Welf. & Inst.  
            Code, § 6607.)

          6)Allows a person committed as a SVP to petition for conditional  
            release or an unconditional discharge any time after one year  
            of commitment, notwithstanding the lack of recommendation or  
            concurrence by the Director of DSH.  (Welf. & Inst. Code, §  
            6608, subd. (a).)

          7)Provides that, if the court deems the conditional release  
            petition not frivolous, the court is to give notice of the  
            hearing date to the attorney designated to represent the  
            county of commitment, the retained or appointed attorney for  
            the committed person, and the Director of State Hospitals at  
            least 30 court days before the hearing date.  (Welf. & Inst.  
            Code, § 6608, subd. (b).)

          8)Requires the court to first obtain the written recommendation  
            of the director of the treatment facility before taking any  
            action on the petition for conditional release if the is made  
            without the consent of the director of the treatment facility.  
             (Welf. & Inst. Code, § 6608, subd. (c).)

          9)Provides that 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. Provides that the attorney designated the  
            county of commitment shall represent the state and have the  
            committed person evaluated by experts chosen by the state and  
            that the committed person shall have the right to the  
            appointment of experts, if he or she so requests.  (Welf. &  
            Inst. Code, § 6608, subd. (e).)

          10)Requires the court to order the committed person placed with  
            an appropriate forensic conditional release program operated  
            by the state for one year if the court at the hearing  
            determines that the committed person would not be a danger to  









                                                                  AB 1607
                                                                  PageE
            others due to his or her diagnosed mental disorder while under  
            supervision and treatment in the community. Requires a  
            substantial portion of the state-operated forensic conditional  
            release program to include outpatient supervision and  
            treatment. Provides that the court retains jurisdiction of the  
            person throughout the course of the program.  (Welf. & Inst.  
            Code, § 6608, subd. (e).)

          11)Provides that 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.  (Welf. & Inst. Code, §  
            6608, subd. (h)

          12)Allows, 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, to petition  
            the court for unconditional discharge, as specified.  (Welf. &  
            Inst. Code, § 6608, subd. (k).)

           FISCAL EFFECT  :  Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Nearly a year  
            ago a Judge in Santa Clara County determined that a sexually  
            violent predator be conditionally released from the Department  
            of State Hospitals to Los Angeles County.  The offender has  
            not lived in Los Angeles County in over 40 years.  His last  
            crimes were committed in Santa Clara County.  Santa Clara  
            County is now overseeing his placement in unincorporated Los  
            Angeles County. 

            "It is politically expedient for one county to send high-risk  
            individuals to another county under the Sexual Violent  
            Predator Act.  No community wants them. However, when your  
            community is receiving the individual, it's unconscionable.   
            Santa Clara County should have told Los Angeles County what  
            was going on.  The Department of State Hospitals should have  
            told Los Angeles what was going on.  But they didn't.  They  
            don't have to under current law.

            "AB 1607 will help to rectify current law so that what is  
            happening in my community does not happen in others."










                                                                  AB 1607
                                                                  PageF
           2)SVP Law Generally  :  The Sexually Violent Predator Act (SVPA)  
            establishes an extended civil commitment scheme for sex  
            offenders who are about to be released from prison, but are  
            referred to the DSH for treatment in a state hospital, because  
            they have suffered from a mental illness which causes them to   
            be a danger to the safety of others.

          The Department of State Hospitals uses specified criteria to  
            determine whether an individual qualifies for treatment as a  
            SVP.  Under existing law, a person may be deemed a SVP if:   
            (a) the defendant has committed specified sex offenses against  
            two or more victims; (b) the defendant has 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; and, (3) two  
            licensed psychiatrists or psychologists concur in the  
            diagnosis.  If both clinical evaluators find that the person  
            meets the criteria, the case is referred to the county  
            district attorney who may file a petition for civil  
            commitment.

          Once a petition has been filed, a judge holds a probable cause  
            hearing; and if probable cause if found, the case proceeds to  
            a trial at which the prosecutor must prove to a jury beyond a  
            reasonable doubt that the offender meets the statutory  
            criteria.  The state must prove "[1] a person who has been  
            convicted of a sexually violent offense against [at least one]  
            victim[] and [2] who has a diagnosed mental disorder that [3]  
            makes the person a danger to the health and safety of others  
            in that it is likely that he or she will engage in [predatory]  
            sexually violent criminal behavior."  (Cooley v. Superior  
            Court (Martinez) (2002) 29 Cal.4th 228, 246.)  If the  
            prosecutor meets this burden, the person then can be civilly  
            committed to a DSH facility for treatment. 

            The Department of State Hospitals must conduct a yearly  
            examination of a SVP's mental condition and submit an annual  
            report to the court.  This annual review includes an  
            examination by a qualified expert.  (Welf. & Inst. Code, §  
            6604.9.)  In addition, DSH has an obligation to seek judicial  
            review any time it believes a person committed as a SVP no  
            longer meets the criteria, not just annually.  (Welf. & Inst.  
            Code, § 6607.)

            The SVPA was substantially amended by Proposition 83  









                                                                  AB 1607
                                                                  PageG
            ("Jessica's Law"), which became operative on November 7, 2006.  
             Originally, a SVP commitment was for two years; but now,  
            under Jessica's Law, a person committed as a SVP may be held  
            for an indeterminate term upon commitment or until it is shown  
            that the defendant no longer poses a danger to others.  (See  
            People v. McKee (2010) 47 Cal. 4th 1172, 1185-87.)  Jessica's  
            Law also amended the SVPA to make it more difficult for SVPs  
            to petition for less restrictive alternatives to commitment.   
            These changes have survived due process, ex post facto, and,  
            more recently, equal protection challenges.  (See People v.  
            McKee, supra, 47 Cal. 4th 1172 and People v. McKee (2012) 207  
            Cal.App.4th 1325.)

           3)Obtaining Release From Commitment  :  A person committed as a  
            SVP may petition the court for conditional release or  
            unconditional discharge after one year of commitment.  (Welf.  
            & Inst. Code, § 6608, subd. (a).)  The petition can be filed  
            with, or without, the concurrence of the Director of State  
            Hospitals.  The Director's concurrence or lack thereof makes a  
            difference in the process used.

          A SVP can, with the concurrence of the Director of State  
            Hospitals, petition for unconditional discharge if the patient  
            "no longer meets the definition of a SVP," or for conditional  
            release.  (Welf. & Inst. Code, § 6604.9, subd. (d).)  If an  
            evaluator determines that the person no longer qualifies as a  
            SVP or that conditional release is in the person's best  
            interest and conditions can be imposed to adequately protect  
            the community, but the Director of State Hospitals disagrees  
            with the recommendation, the Director must nevertheless  
            authorize the petition.  (People v. Landau (2011) 199  
            Cal.App.4th 31, 37-39.)  When the petition is filed with the  
            concurrence of the DSH, the court order a show cause hearing.  
            (Welf. & Inst. Code, § 6604.9, subd. (f).)  If probable cause  
            is found, the patient thereafter has a right to a jury trial  
            and is entitled to relief unless the district attorney proves  
            "beyond a reasonable doubt that the committed person's  
            diagnosed mental disorder remains such that he or she is a  
            danger to the health and safety of others and is likely to  
            engage in sexually violent behavior if discharged."  (Welf. &  
            Inst. Code, § 6605.) 

          A committed person may also petition for conditional release or  
            unconditional discharge notwithstanding the lack of  
            recommendation or concurrence by the Director of State  









                                                                  AB 1607
                                                                  PageH
            Hospitals. (Welf. & Inst. Code, § 6608, subd. (a).)  Upon  
            receipt of this type of petition, 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."  (Welf. & Inst. Code, § 6608,  
            subd. (a).)<1>  If the petition is not found to be frivolous,  
            the court is required to hold a hearing.  (People v. Smith  
            (2013) 216 Cal.App.4th 947.)

          The SVPA does not define the term "frivolous."  The courts have  
            applied the definition of "frivolous" found in Code of Civil  
            Procedure section 128.5, subdivision (b)(2): "totally and  
            completely without merit" or "for the sole purpose of  
            harassing an opposing party."  (People v. Reynolds (2010) 181  
            Cal.App.4th 1402, 1411; see also People v. McKee, supra, 47  
            Cal.4th 1172; People v. Collins (2003) 110 Cal.App.4th 340,  
            349.)  Additionally, in Reynolds, supra, 181 Cal.App.4th at p.  
            1407, the court interpreted Welfare and Institutions Code  
            section 6608 to require the petitioner to allege facts in the  
            petition that will show he or she is not likely to engage in  
            sexually-violent criminal behavior due to a diagnosed mental  
            disorder, without supervision and treatment in the community,  
            since that is the relief requested.

          Once the court sets the hearing on the petition, then the  
            petitioner is entitled to both the assistance of counsel, and  
            the appointment of an expert.  (People v. McKee, supra, 47  
            Cal.4th 1172, 1193.)  At the hearing, the person petitioning  
            for release has the burden of proof by a preponderance of the  
            evidence.  (Welf. & Inst. Code, § 6608, subd. (i); People v.  
            Rasmuson (2006) 145 Cal.App.4th 1487, 1503.)  If the petition  
          ---------------------------
          <1> Recently, in People v. McCloud (2013) 213 Cal.App.4th 1076,  
          the Court of Appeal recognized that the provision in Welfare and  
          Institutions Code section 6608, subdivision (a) allowing for  
          dismissal of a frivolous petition for release without a hearing,  
          may violate the equal protection clause.  The petitioner's equal  
          protection claim was based on the fact that "[n]o other  
          commitment scheme allows the judge to deem the petition  
          'frivolous' and thereby deny the petitioner a hearing."  (Id. at  
          p. 1087.)  The court found there might well be actual disparate  
          treatment of similarly situated persons-and if there was  
          disparate treatment, the State might or might not be justified  
          in so distinguishing between persons.  The court remanded the  
          case for further proceedings on the equal protection claim.   
          (Id. at p. 1088.)








                                                                  AB 1607
                                                                  PageI
            is denied, the SVP may not file a subsequent petition until  
            one year from the date of the denial.  (Welf. & Inst. Code, §  
            6608, subd. (h).)  

          4)Argument in Support  :  According to the  Los Angeles County  
            District Attorney's Office  , "AB 1607 corrects the [problem in  
            current law] by providing for a hearing by declaration to  
            determine the county of domicile. Any county alleged to be the  
            county of domicile would be given notice and an opportunity to  
            participate in the proceeding. The designated attorney  
            (usually the district attorney) of the county held to be of  
            domicile could then elect to represent the state at the  
            conditional release hearing. 

            "Under current law, the court in the county of commitment may  
            place the SVP in another county, sometimes a county on the  
            other end of the state. However, the court of commitment  
            retains jurisdiction of all future matters. Thus, when the  
            case comes up for review or the SVP is alleged to have  
            committed a new crime, or otherwise violated the terms and  
            conditions of release, the district attorney, the witnesses,  
            the persons supervising the SVP and others must be transported  
            to the commitment county for the hearing. Since multiple  
            hearings are often necessary, this is a substantial expense  
            for the placement county. Moreover, a local court is in a much  
            better position to effectively supervise an SVP placed in its  
            jurisdiction. 

            "AB 1607 addresses the problem by permitting transfer of the  
            jurisdiction of the SVP case to the county in which the SVP  
            has been placed. This is the current practice when a person on  
            parole or probation is transferred to another county for  
            supervision. It is also the correct approach for SVP cases.

            "Sexually violent predators are among the most dangerous  
            offenders.  AB 1607 will promote public safety and help to  
            prevent future victimization by assuring district attorneys  
            receive notice and an opportunity to be heard regarding the  
            pending release of these offenders and that local courts be  
            granted jurisdiction of an SVP placed in their communities."  
                 
            5)Arguments in Opposition  :  

              a)   As argued by  California Attorneys for Criminal Justice  ,  
               "[t]his bill is a reaction to a problem that does not  









                                                                  AB 1607
                                                                  PageJ
               exist, making NIMBY (Not In My Back Yard) a statutory  
               mandate.  Since 2006, the California Sex Offender  
               Management Board has warned of the perils that result from  
               restrictive legislation that causes the majority of  
               California sex offenders to be homeless. ?  This proposed  
               bill is an overly broad, expensive, and unjustified  
               restrictive piece of legislation."  

             b)   Taxpayer for Improving Public Safety  argues that "[t]his  
               legislation is an attempt to use the judicial process to  
               deny registered sex offenders a local to reside through the  
               district attorney or city attorney seeking a judicial  
               determination that the parolee should not reside in a  
               community.  No elected official, judge, legislator or  
                                                                      public prosecutor will ever approve a residential location  
               within the district in which they must seek election or  
               re-election."  
            
            6)Prior Legislation  :  
                 
              a)   AB 768 (Achadjian), of this Legislative Session, would  
               have prohibited a SVP granted conditional release from  
               being released as a transient or placed in housing  
               consisting of a recreational or other vehicle and would  
               have declared that extraordinary circumstances justifying  
               the placement of a person who has been granted conditional  
               release in a county other than his or her county of  
               domicile are present when housing cannot be located within  
               the county of domicile within 180 days of the conditional  
               release order.  AB 768 failed passage in this committee.

             b)   SB 295 (Emmerson), Chapter 182, Statutes of 2013,  
               revised the procedures to be used by the courts for SVP  
               petitions, whether with or without DSH concurrence, for  
               conditional release and unconditional discharge.

             c)   AB 421 (Smyth), of the 2011-12 Legislative Session, made  
               procedural changes in SVP commitment proceedings.  AB 421  
               failed passage in this committee.

             d)   SB 179 (Pavley), Chapter 359, Statutes of 2011, tolls  
               the parole period for any person subject to a SVP  
               proceeding upon a finding of probable cause through release  
               from dismissal of proceeding or release from confinement.










                                                                  AB 1607
                                                                  PageK
             e)   Proposition 83 ("Jessica's Law"), operative on November  
               7, 2006, and SB 1128 (Alquist), Chapter 337, Statutes of  
               2006, made numerous changes to sex offender and SVP law,  
               including making commitment terms indefinite.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Los Angeles County Board of Supervisors (Co-Sponsor)
          Los Angeles County District Attorney (Co-Sponsor)
          Association of Los Angeles Deputy Sheriffs
          California District Attorneys Association
          Crime Victims United of California
          Los Angeles Police Protective League
          Riverside Sheriffs' Association
          Urban Counties Caucus

           Opposition 
           
          California Attorneys for Criminal Justice
          Disability Rights California
          Taxpayers for Improving Public Safety
           

          Analysis Prepared by  :    Shaun Naidu / PUB. S. / (916) 319-3744