BILL ANALYSIS Ó Senate Appropriations Committee Fiscal Summary Senator Kevin de León, Chair AB 1607 (Fox) - Sexually violent predators. Amended: July 2, 2014 Policy Vote: Public Safety 7-0 Urgency: No Mandate: Yes Hearing Date: August 14, 2014 Consultant: Jolie Onodera SUSPENSE FILE. AS AMENDED. Bill Summary: AB 1607 would provide that the county of domicile of a conditionally released sexually violent predator (SVP) patient - the county to which the SVP will be released - shall be determined by a newly defined process involving the court, the county of commitment, and each county that could potentially be determined to be the county of domicile. Fiscal Impact (as approved on August 14, 2014): Potentially significant state-reimbursable costs (General Fund) for placing additional duties on counties, including a county's designated counsel, with regard to conditional releases of SVPs, including additional noticing requirements to the court and specified parties, participation in newly established domicile hearings, when required, and additional costs for designated attorneys of the county of domicile to participate in conditional release hearings in the county of commitment. Potential future cost savings to local agencies and the courts to the extent the formal and final court determination of the county of domicile precludes attorneys from the county of commitment and the county of domicile from filing additional motions to appeal. Background: Existing law provides for the civil commitment for psychiatric and psychological treatment of a prison inmate found to be a sexually violent predator (SVP) after the person has served his or her prison commitment. Under existing law, a SVP is defined 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. (Welfare and AB 1607 (Fox) Page 1 Institutions Code (WIC) § 6600(a)(1).) Existing law provides that a person committed as a SVP to the Department of State Hospitals (DSH) shall be held for an indeterminate term upon commitment and requires that a SVP have an annual examination on his or her mental condition, including consideration of whether or not conditional release to a less restrictive alternative or unconditional release is in the SVP's best interest and what conditions would adequately protect the community. (WIC §§ 6604.1, 6604.9.) Existing law establishes provisions by which a committed SVP may petition the court for conditional or unconditional release. If the court decides a petition for conditional release is not frivolous, the court is required to give notice at least 30 days prior to the hearing date for the petition. Under existing law, a person who is conditionally released is to be placed in the county of domicile of the person prior to the person's incarceration unless the court finds that extraordinary circumstances require placement outside the county of domicile. (WIC § 6608.) This bill would create a new process involving the court, the petitioner, the DSH, the designated attorney of the county of commitment, and the designated attorney of the potential county of domicile, to determine the county of domicile prior to the conditional release hearing. Proposed Law: This bill would provide that the county of domicile of a conditionally released sexually violent predator (SVP) patient - the county to which the SVP will be released - shall be determined by a newly defined process involving the court, the county of commitment, and each county that could potentially be determined to be the county of domicile, as follows: Requires the petitioner, DSH, and the attorney of the county of commitment to notify the court within 30 days of receipt of a notice of a conditional release hearing if it appears that a county other that the county of commitment may be the county of domicile. Requires the court to set a hearing to determine the county of domicile if there are allegations that one or more counties, other than the county of commitment, may be the county of commitment. AB 1607 (Fox) Page 2 Requires the court to give notice of the domicile hearing to the designated attorney of the county of commitment, the retained or appointed attorney for the committed person, the DSH, and the designated attorneys for any alleged county of domicile. Authorizes the parties noted above to file and serve declarations, documentary evidence, and other pleadings, that are specific only to the issue of domicile, and authorizes the court to decide the issue of domicile solely on the pleadings, or additionally permit in the interests of justice, argument and testimony. After determining the county of domicile, requires the court to set a date for a conditional release hearing and requires the court to give notice of the hearing at least 30 days before the hearing, as specified. Provides that the designated attorney for the county of domicile will represent the state at the conditional release hearing if the designated attorney for the county of domicile and the designated attorney for the county of commitment mutually agree. If the designated attorneys do not make this agreement, the designated attorney for the county of commitment is required to represent the state at the hearing. Requires the designated attorney for the county of commitment to give notice to the court, the DSH, the retained or appointed attorney for he committed person, and the petitioner, at least 20 court days before the conditional release hearing whether the state will be represented by the designated attorney of the county of domicile or the designated attorney of the county of commitment. Provides that the designated attorneys should cooperate with each other to ensure that all relevant evidence is submitted on behalf of the state, and requires that 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. Provides that the court's determination of a county of domicile shall govern the current and any subsequent petitions for conditional release. Provides that a person who is conditionally released shall be placed in the county of domicile of the person prior to the person's incarceration unless both of the following conditions are satisfied: AB 1607 (Fox) Page 3 o The court finds that extraordinary circumstances require placement outside the county of domicile. o 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. Provides that 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 attorney of the county of placement, be transferred to the court of the county of placement. Staff Comments: This bill requires coordination and cooperation among counties involved in the conditional release of an SVP, specifically when the county of domicile into which the SVP is to be released is not the county of commitment. Under current law, there is no requirement for the court or the county of commitment of an SVP to notify a county, or to allow for input from a county, into which an SVP is being conditionally released. By creating a process by which the determination of the county of domicile is to be decided by the court could result in potentially significant state-reimbursable costs (General Fund) for placing additional duties on counties, including public defenders and district attorneys, with regard to conditional releases of SVPs. These additional duties include mandated noticing requirements to the court and specified parties, participation in newly established domicile hearings, when required, and additional costs for designated attorneys of the county of domicile to participate in conditional release hearings in the county of commitment. To the extent the determination of the county of domicile is decided by the court solely on the pleadings would mitigate potential costs to some degree, however, it is unknown with certainty how many SVP cases will require domicile hearings. The Commission on State Mandates (CSM) previously approved a claim (CSM-4509) for reimbursement to local agencies for the preparation and attendance by the county's designated counsel at the probable cause hearing, trial, and further hearings, and related activities, including housing and transportation of potential SVPs while awaiting trial. Although a new test claim AB 1607 (Fox) Page 4 decision was adopted in 2013 to provide continuing reimbursement only for preparation and attendance by the county's designated counsel and indigent defense counsel at the probable cause hearing, and for transportation between a courthouse and a secure facility for purposes of the hearing, the other activities previously approved as reimbursable mandates were determined non-reimbursable due to an intervening voter-enacted ballot measure. The State Controller's Office made a $20.9 million payment in FY 2011-12 for costs associated with this mandate for expenditures incurred over several years. This bill could also result in future cost savings to local agencies and the courts to the extent the formal and final court determination of the county of domicile precludes attorneys from the county of commitment and the county of domicile from filing additional motions to appeal. Committee amendments delay implementation of the bill's provisions one year to January 1, 2016.