Amended in Senate March 21, 2013

Senate BillNo. 295


Introduced by Senator Emmerson

February 15, 2013


An act to amendbegin delete Section 4905end deletebegin insert Sections 6605 and 6608end insert of the Welfare and Institutions Code, relating tobegin delete developmental services.end deletebegin insert sexually violent predators.end insert

LEGISLATIVE COUNSEL’S DIGEST

SB 295, as amended, Emmerson. begin deleteDevelopmental services: protection and advocacy agencies. end deletebegin insertSexually violent predators: civil commitment.end insert

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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 or unconditional discharge. Proposition 83 of the November 7, 2006, statewide general election, made various changes to the sexually violent predator civil commitment process.

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begin insert

Proposition 83 permits the Legislature to amend its provisions, either by a 23 vote of the membership of each house, or by a majority vote of the membership of each house if the amendments expand the scope of the application of the provisions of the proposition or increase the punishments or penalties provided in the proposition.

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begin insert

This bill would clarify which provisions are to be used when a committed person petitions for conditional release and which provisions are to be used when a committed person petitions for unconditional discharge. The bill would also require the community program director designated by the State Department of State Hospitals to submit a report to the court in response to the petition that makes a recommendation as to the appropriateness of placement of the person in a state-operated forensic conditional release program before a hearing can be held. The bill would require, as part of the conditional release hearing, that a designated attorney represent the state and have the committed person evaluated by experts chosen by the state. The bill would also prohibit, if unconditional discharge is denied, the committed person from petitioning for unconditional discharge for one year.

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begin insert

Existing law prohibits action on a petition for conditional release that was not made by the director of the treatment facility to which the person is committed without first obtaining the written recommendation of the director of the treatment facility.

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begin insert

This bill would, instead, prohibit action on a petition for conditional release that was not made with the recommendation or concurrence of the Director of State Hospitals without first obtaining the written recommendation of the Director of State Hospitals.

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Existing law, the Lanterman Developmental Disabilities Services Act, requires the State Department of Developmental Services to contract with appropriate agencies to provide community services and support for persons with developmental disabilities and their families, including, but not limited to, regional centers, and sets forth the duties of the regional centers, including, but not limited to, development of individual program plan and the purchase of needed services to implement the plan. Existing law prohibits an employee or agent of a facility, program or service from subjecting a person with a disability to reprisal or harassment that would prevent the person, his or her legally authorized representative, or family member from reporting to the protection and advocacy agency designated by the Governor information pertaining to suspected abuse, neglect, or other violations of the person’s rights.

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This bill would make technical, nonsubstantive changes to those provisions.

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Vote: begin deletemajority end deletebegin insert23end insert. Appropriation: no. Fiscal committee: begin deleteno end deletebegin insertyesend insert. State-mandated local program: no.

The people of the State of California do enact as follows:

P3    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 6605 of the end insertbegin insertWelfare and Institutions Codeend insert
2begin insert is amended to read:end insert

3

6605.  

(a) A person found to be a sexually violent predator and
4committed to the custody of the State Department of State Hospitals
5shall have a current examination of his or her mental condition
6made at least once every year. The annual report shall include
7consideration of whether the committed person currently meets
8the definition of a sexually violent predator and whether conditional
9release to a less restrictive alternativebegin insert, pursuant to the procedure
10described in Section 6608,end insert
or an unconditionalbegin delete releaseend deletebegin insert discharge,
11pursuant to the procedure described in this section,end insert
is in the best
12interest of the person and conditions can be imposed that would
13adequately protect the community. The State Department of State
14Hospitals shall file this periodic report with the court that
15committed the person under this article. The report shall be in the
16form of a declaration and shall be prepared by a professionally
17qualified person. A copy of the report shall be served on the
18prosecuting agency involved in the initial commitment and upon
19the committed person. The person may retain, or if he or she is
20indigent and so requests, the court may appoint, a qualified expert
21or professional person to examine him or her, and the expert or
22professional person shall have access to all records concerning the
23person.

24(b) If the State Department of State Hospitals determines that
25either: (1) the person’s condition has so changed that the person
26no longer meets the definition of a sexually violent predatorbegin insert and
27should, therefor, be considered for end insert
begin insertunconditional dischargeend insert, or
28(2) conditional release to a less restrictive alternative is in the best
29interest of the person and conditions can be imposed that
30adequately protect the community, the director shall authorize the
31person to petition the court for conditional release to a less
32restrictive alternative or for an unconditional discharge. The
33petition shall be filed with the court and served upon the
34prosecuting agency responsible for the initial commitment.begin delete Theend delete

35begin insert(c)end insertbegin insertend insertbegin insert(1)end insertbegin insertend insertbegin insertTheend insert court, upon receipt of the petition for conditional
36release to a less restrictive alternativebegin delete orend deletebegin insert, shall consider that
37petition using the procedures described in subdivisions (c) to (j),
38inclusive, of Section 6608.end insert

P4    1begin insert(2)end insertbegin insertend insertbegin insert The court, upon receiving a petition forend insert unconditional
2discharge, shall order a show cause hearingbegin insert, pursuant to paragraph
3(3),end insert
at which the court can consider the petition and any
4accompanying documentation provided by the medical director,
5the prosecuting attorney, or the committed person.

begin delete

6(c)

end delete

7begin insert(3)end insert If the court at the show cause hearing determines thatbegin insert the
8committed person has shownend insert
probable causebegin delete existsend delete to believe that
9begin delete the committed person’send deletebegin insert his or herend insert diagnosed mental disorder has
10so changed that he or she is not a danger to the health and safety
11of others and is not likely to engage in sexually violent criminal
12behavior if discharged, then the court shall set a hearing on the
13issue.

14(d) At the hearing, the committed person shall have the right to
15be present and shall be entitled to the benefit of all constitutional
16protections that were afforded to him or her at the initial
17commitment proceeding. The attorney designated by the county
18pursuant to subdivision (i) of Section 6601 shall represent the state
19and shall have the right to demand a jury trial and to have the
20committed person evaluated by experts chosen by the state. The
21committed person also shall have the right to demand a jury trial
22and to have experts evaluate him or her on his or her behalf. The
23court shall appoint an expert if the person is indigent and requests
24an appointment. The burden of proof at the hearing shall be on the
25state to prove beyond a reasonable doubt that the committed
26person’s diagnosed mental disorder remains such that he or she is
27a danger to the health and safety of others and is likely to engage
28in sexually violent criminal behavior if discharged. Where the
29person’s failure to participate in or complete treatment is relied
30upon as proof that the person’s condition has not changed, and
31there is evidence to support that reliance, the jury shall be instructed
32substantially as follows:

33“The committed person’s failure to participate in or complete
34the State Department of State Hospitals Sex Offender Commitment
35Program (SOCP) are facts that, if proved, may be considered as
36evidence that the committed person’s condition has not changed.
37The weight to be given that evidence is a matter for the jury to
38determine.”

39(e) If the court or jury rules against the committed person at the
40hearing conducted pursuant to subdivision (d), the term of
P5    1commitment of the person shall run for an indeterminate period
2from the date of thisbegin delete ruling.end deletebegin insert ruling and the committed person may
3not file a new petition until one year has elapsed from the date of
4the ruling.end insert
If the court or jury rules for the committed person, he
5or she shall be unconditionally released and unconditionally
6discharged.

7(f) begin deleteIn the event that end deletebegin insertIf end insertthe State Department of State Hospitals
8has reason to believe that a person committed to it as a sexually
9violent predator is no longer a sexually violent predator, it shall
10seek judicial review of the person’s commitment pursuant to the
11procedures set forth in Section 7250 in the superior court from
12which the commitment was made. If the superior court determines
13that the person is no longer a sexually violent predator, he or she
14shall be unconditionally released and unconditionally discharged.

15begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 6608 of the end insertbegin insertWelfare and Institutions Codeend insertbegin insert is
16amended to read:end insert

17

6608.  

(a) begin deleteNothing in this article shall prohibit the end deletebegin insertAend insertbegin insert end insertperson
18who has been committed as a sexually violent predatorbegin delete from
19petitioningend delete
begin insert shall be permitted to petitionend insert the court for conditional
20releasebegin delete or an unconditional dischargeend deletebegin insert with orend insert without the
21recommendation or concurrence of the Director of State Hospitals.
22If a person has previously filed a petition for conditional release
23without the concurrence of the director and the court determined,
24either upon review of the petition or following a hearing, that the
25petition was frivolous or that the committed person’s condition
26had not so changed that he or she would not be a danger to others
27in that it is not likely that he or she will engage in sexually violent
28criminal behavior if placed under supervision and treatment in the
29community, then the court shall deny the subsequent petition unless
30it contains facts upon which a court could find that the condition
31of the committed person had so changed that a hearing was
32warranted. Upon receipt of a first or subsequent petition from a
33committed person without the concurrence of the director, the
34court shall endeavor whenever possible to review the petition and
35determine if it is based upon frivolous grounds and, if so, shall
36deny the petition without a hearing. The person petitioning for
37conditional releasebegin delete and unconditional dischargeend delete under this
38subdivision shall be entitled to assistance of counsel. The person
39petitioning for conditional releasebegin delete or unconditional dischargeend delete shall
P6    1serve a copy of the petition on the State Department of State
2Hospitals at the time the petition is filed with the court.

3(b) begin deleteThe end deletebegin insertIf the court deems the petition not frivolous pursuant
4to subdivision (a), theend insert
begin insert end insertcourt shall give notice of the hearing date
5to the attorney designated in subdivision (i) of Section 6601, the
6retained or appointed attorney for the committed person, and the
7Director of State Hospitals at least 30 court days before the hearing
8date.

begin insert

9(c) If the petition for conditional release is made without the
10consent of the Director of State Hospitals, no action shall be taken
11on the petition by the court without first obtaining the written
12recommendation of the Director of State Hospitals.

end insert
begin delete

13(c)

end delete

14begin insert(d)end insert No hearing upon the petition shall be held until the person
15who is committed has been under commitment for confinement
16and care in a facility designated by the Director of State Hospitals
17for not less than one year from the date of the order of commitment.
18begin insert No hearing upon the petition shall be held until the community
19program director designated by the State Department of State
20Hospitals submits a report to the court that makes a
21recommendation as to the appropriateness of placing the person
22in a state-operated forensic conditional release program.end insert

begin delete

23(d)

end delete

24begin insert(e)end insert The court shall hold a hearing to determine whether the
25person committed would be a danger to the health and safety of
26others in that it is likely that he or she will engage in sexually
27violent criminal behavior due to his or her diagnosed mental
28disorder if under supervision and treatment in the community.begin insert The
29attorney designated pursuant to subdivision (i) of Section 6601
30shall represent the state and shall have the committed person
31evaluated by experts chosen by the state.end insert
If the court at the hearing
32determines that the committed person would not be a danger to
33others due to his or her diagnosed mental disorder while under
34supervision and treatment in the community, the court shall order
35the committed person placed with an appropriate forensic
36conditional release program operated by the state for one year. A
37substantial portion of the state-operated forensic conditional release
38program shall include outpatient supervision and treatment. The
39court shall retain jurisdiction of the person throughout the course
40of the program.begin delete At the end of one year, the court shall hold a
P7    1hearing to determine if the person should be unconditionally
2released from commitment on the basis that, by reason of a
3diagnosed mental disorder, he or she is not a danger to the health
4and safety of others in that it is not likely that he or she will engage
5in sexually violent criminal behavior. The court shall not make
6this determination until the person has completed at least one year
7in the state-operated forensic conditional release program. The
8court shall notify the Director of State Hospitals of the hearing
9date.end delete

begin delete

10(e)

end delete

11begin insert(f)end insert Before placing a committed person in a state-operated
12forensic conditional release program, the community program
13director designated by the State Department of State Hospitals
14shall submit a written recommendation to the court stating which
15forensic conditional release program is most appropriate for
16supervising and treating the committed person. If the court does
17not accept the community program director’s recommendation,
18the court shall specify the reason or reasons for its order on the
19record. The procedures described in Sections 1605 to 1610,
20inclusive, of the Penal Code shall apply to the person placed in
21the forensic conditional release program.

begin delete

22(f)

end delete

23begin insert(g)end insert If the court determines that the person should be transferred
24to a state-operated forensic conditional release program, the
25community program director, or his or her designee, shall make
26the necessary placement arrangements and, within 30 days after
27receiving notice of the court’s finding, the person shall be placed
28in the community in accordance with the treatment and supervision
29plan unless good cause for not doing so is presented to the court.

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30(g) If the court rules against the committed person at the trial
31for unconditional release from commitment, the court may place
32the committed person on outpatient status in accordance with the
33procedures described in Title 15 (commencing with Section 1600)
34of Part 2 of the Penal Code.

end delete

35(h) If the court denies the petition to place the person in an
36appropriate forensic conditional release programbegin delete or if the petition
37for unconditional discharge is deniedend delete
, the person may not file a
38new application until one year has elapsed from the date of the
39denial.

P8    1(i) Inbegin delete anyend deletebegin insert aend insert hearing authorized by this section, thebegin delete petitionerend delete
2begin insert committed personend insert shall have the burden of proof by a
3preponderance of the evidence.

begin delete

4(j) If the petition for conditional release is not made the director
5of the treatment facility to which the person is committed, no action
6on the petition shall be taken by the court without first obtaining
7the written recommendation of the director of the treatment facility.

end delete
begin delete

8(k)

end delete

9begin insert(j)end insert Time spent in a conditional release program pursuant to this
10section shall not count toward the term of commitment under this
11article unless the person is confined in a locked facility by the
12conditional release program, in which case the time spent in a
13locked facility shall count toward the term of commitment.

begin insert

14(k) After a minimum of one year on conditional release, the
15committed person, with or without the recommendation or
16concurrence of the Director of State Hospitals, may petition the
17court for unconditional discharge. The court shall use the
18procedures described in paragraph (3) of subdivision (c) of, and
19subdivisions (d) and (e) of, Section 6605 to determine if the person
20should be unconditionally discharged from commitment on the
21basis that, by reason of a diagnosed mental disorder, he or she is
22no longer a danger to the health and safety of others in that it is
23not likely that he or she will engage in sexually violent criminal
24behavior.

end insert
begin delete
25

SECTION 1.  

Section 4905 of the Welfare and Institutions Code
26 is amended to read:

27

4905.  

(a) No employee or agent of a facility, program, or
28service shall subject a person with a disability to reprisal or
29harassment or directly or indirectly take or threaten to take an
30action that would prevent the person, his or her legally authorized
31representative, or family member from reporting or otherwise
32bringing to the attention of the protection and advocacy agency
33the facts or information relative to suspected abuse, neglect, or
34other violations of the person’s rights.

35(b) An attempt to involuntarily remove from a facility, program,
36or service, or to deny privileges or rights without good cause to a
37person with a disability by whom or for whom a complaint has
38been made to the protection and advocacy agency, within 60 days
39after the date the complaint is made or within 60 days after the
40conclusion of a proceeding resulting from the complaint, shall
P9    1raise a presumption that the action was taken in retaliation for the
2filing of the complaint.

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