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