Amended in Senate May 7, 2013

Amended in Senate March 21, 2013

Senate BillNo. 295


Introduced by Senator Emmerson

February 15, 2013


An act to amend Sections 6605 and 6608 ofbegin insert, and to add Section 6604.9 to,end insert the Welfare and Institutions Code, relating to sexually violent predators.

LEGISLATIVE COUNSEL’S DIGEST

SB 295, as amended, Emmerson. Sexually violent predators: civil commitment.

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 personbegin insert is annually reviewed to determine his or her status and by which the committed personend insert 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.

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.

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 dischargebegin insert and would make nonsubstantive, organizational changes to the provisionsend insert. 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.

begin insert

Existing law places the burden of proof in a hearing for conditional release on the petitioner, by a preponderance of the evidence.

end insert
begin insert

This bill, when the annual report 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, would shift the burden of proof to the state to show, by a preponderance of the evidence, that conditional release is not appropriate.

end 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.

This bill would, instead, prohibit action on a petition for conditional release that was not made with thebegin delete recommendation or concurrenceend deletebegin insert consentend insert of thebegin delete Director of State Hospitalsend deletebegin insert director of the treatment facilityend insert without first obtaining the written recommendation of thebegin delete Director of State Hospitalsend deletebegin insert director of the treatment facilityend insert.

Vote: 23. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

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

P2    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 6604.9 is added to the end insertbegin insertWelfare and
2Institutions Code
end insert
begin insert, to read:end insert

begin insert
P3    1

begin insert6604.9.end insert  

(a) A person found to be a sexually violent predator
2and committed to the custody of the State Department of State
3Hospitals shall have a current examination of his or her mental
4condition made at least once every year. The report shall be in the
5form of a declaration and shall be prepared by a professionally
6qualified person. The person may retain, or if he or she is indigent
7and so requests, the court may appoint, a qualified expert or
8professional person to examine him or her, and the expert or
9professional person shall have access to all records concerning
10the person.

11(b) The annual report shall include consideration of whether
12the committed person currently meets the definition of a sexually
13violent predator and whether conditional release to a less
14restrictive alternative, pursuant to Section 6608, or an
15unconditional discharge, pursuant to Section 6605, is in the best
16interest of the person and conditions can be imposed that would
17adequately protect the community.

18(c) The State Department of State Hospitals shall file this
19periodic report with the court that committed the person under
20this article. A copy of the report shall be served on the prosecuting
21agency involved in the initial commitment and upon the committed
22person.

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

34(e) The court, upon receipt of the petition for conditional release
35to a less restrictive alternative, shall consider the petition using
36procedures described in Section 6608.

37(f) The court, upon receiving a petition for unconditional
38discharge, shall order a show cause hearing, pursuant to the
39provisions of Section 6605, at which the court may consider the
40petition and any accompanying documentation provided by the
P4    1medical director, the prosecuting attorney, or the committed
2person.

end insert
3

begin deleteSECTION 1.end delete
4begin insertSEC. 2.end insert  

Section 6605 of the Welfare and Institutions Code is
5amended to read:

begin delete
6

6605.  

(a) A person found to be a sexually violent predator and
7committed to the custody of the State Department of State Hospitals
8shall have a current examination of his or her mental condition
9made at least once every year. The annual report shall include
10consideration of whether the committed person currently meets
11the definition of a sexually violent predator and whether conditional
12release to a less restrictive alternative, pursuant to the procedure
13described in Section 6608, or an unconditional discharge, pursuant
14to the procedure described in this section, is in the best interest of
15the person and conditions can be imposed that would adequately
16protect the community. The State Department of State Hospitals
17shall file this periodic report with the court that committed the
18person under this article. The report shall be in the form of a
19declaration and shall be prepared by a professionally qualified
20person. A copy of the report shall be served on the prosecuting
21agency involved in the initial commitment and upon the committed
22person. The person may retain, or if he or she is indigent and so
23requests, the court may appoint, a qualified expert or professional
24person to examine him or her, and the expert or professional person
25shall have access to all records concerning the person.

26(b) If the State Department of State Hospitals determines that
27either: (1) the person’s condition has so changed that the person
28no longer meets the definition of a sexually violent predator and
29should, therefor, be considered for unconditional discharge, or (2)
30conditional release to a less restrictive alternative is in the best
31interest of the person and conditions can be imposed that
32adequately protect the community, the director shall authorize the
33person to petition the court for conditional release to a less
34restrictive alternative or for an unconditional discharge. The
35petition shall be filed with the court and served upon the
36prosecuting agency responsible for the initial commitment.

37(c) (1) The court, upon receipt of the petition for conditional
38release to a less restrictive alternative, shall consider that petition
39using the procedures described in subdivisions (c) to (j), inclusive,
40of Section 6608.

P5    1(2) 

end delete
2begin insert

begin insert6605.end insert  

end insert

begin insert(a)end insertbegin insertend insertbegin insert(1)end insertbegin insertend insert The court, upon receiving a petition for
3unconditional discharge, shall order a show cause hearingbegin delete, pursuant
4to paragraph (3),end delete
at which the court can consider the petition and
5any accompanying documentation provided by the medical director,
6the prosecuting attorney, or the committed person.

begin delete

7 7(3)

end delete

8begin insert(2)end insert If the court at the show cause hearing determines thatbegin delete the
9committed person has shownend delete
probable causebegin insert existsend insert to believe that
10begin delete his or herend deletebegin insert the committed person’send insert diagnosed mental disorder has
11so changed that he or she is not a danger to the health and safety
12of others and is not likely to engage in sexually violent criminal
13behavior if discharged, then the court shall set a hearing on the
14issue.

begin delete

14 15(d)

end delete

16begin insert(3)end insert At the hearing, the committed person shall have the right to
17be present and shall be entitled to the benefit of all constitutional
18protections that were afforded to him or her at the initial
19commitment proceeding. The attorney designated by the county
20pursuant to subdivision (i) of Section 6601 shall represent the state
21and shall have the right to demand a jury trial and to have the
22committed person evaluated by experts chosen by the state. The
23committed person also shall have the right to demand a jury trial
24and to have experts evaluate him or her on his or her behalf. The
25court shall appoint an expert if the person is indigent and requests
26an appointment. The burden of proof at the hearing shall be on the
27state to prove beyond a reasonable doubt that the committed
28person’s diagnosed mental disorder remains such that he or she is
29a danger to the health and safety of others and is likely to engage
30in sexually violent criminal behavior if discharged. Where the
31person’s failure to participate in or complete treatment is relied
32upon as proof that the person’s condition has not changed, and
33there is evidence to support that reliance, the jury shall be instructed
34substantially as follows:

35“The committed person’s failure to participate in or complete
36the State Department of State Hospitals Sex Offender Commitment
37Program (SOCP) are facts that, if proved, may be considered as
38evidence that the committed person’s condition has not changed.
39The weight to be given that evidence is a matter for the jury to
40determine.”

begin delete

39 P6    1(e)

end delete

2begin insert(b)end insert If the court or jury rules against the committed person at the
3hearing conducted pursuant to subdivisionbegin delete (d),end deletebegin insert (a),end insert the term of
4commitment of the person shall run for an indeterminate period
5from the date of this ruling and the committed person may not file
6a new petition until one year has elapsed from the date of the ruling.
7If the court or jury rules for the committed person, he or she shall
8be unconditionally released and unconditionally discharged.

begin delete

7 9(f)

end delete

10begin insert(c)end insert If the State Department of State Hospitals has reason to
11believe that a person committed to it as a sexually violent predator
12is no longer a sexually violent predator, it shall seek judicial review
13of the person’s commitment pursuant to the procedures set forth
14in Section 7250 in the superior court from which the commitment
15was made. If the superior court determines that the person is no
16longer a sexually violent predator, he or she shall be
17unconditionally released and unconditionally discharged.

18

begin deleteSEC. 2.end delete
19begin insertSEC. 3.end insert  

Section 6608 of the Welfare and Institutions Code is
20amended to read:

21

6608.  

(a) A person who has been committed as a sexually
22violent predator shall be permitted to petition the court for
23conditional release with or without the recommendation or
24concurrence of the Director of State Hospitals. If a person has
25previously filed a petition for conditional release without the
26concurrence of the director and the court determined, either upon
27review of the petition or following a hearing, that the petition was
28frivolous or that the committed person’s condition had not so
29changed that he or she would not be a danger to others in that it is
30not likely that he or she will engage in sexually violent criminal
31behavior if placed under supervision and treatment in the
32community, then the court shall deny the subsequent petition unless
33it contains facts upon which a court could find that the condition
34of the committed person had so changed that a hearing was
35warranted. Upon receipt of a first or subsequent petition from a
36committed person without the concurrence of the director, the
37court shall endeavor whenever possible to review the petition and
38determine if it is based upon frivolous grounds and, if so, shall
39deny the petition without a hearing. The person petitioning for
40conditional release under this subdivision shall be entitled to
P7    1assistance of counsel. The person petitioning for conditional release
2shall serve a copy of the petition on the State Department of State
3Hospitals at the time the petition is filed with the court.

4(b) If the court deems the petition not frivolous pursuant to
5subdivision (a), the court shall give notice of the hearing date to
6the attorney designated in subdivision (i) of Section 6601, the
7retained or appointed attorney for the committed person, and the
8Director of State Hospitals at least 30 court days before the hearing
9date.

10(c) If the petition for conditional release is made without the
11consent of thebegin delete Director of State Hospitalsend deletebegin insert director of the treatment
12facilityend insert
, no action shall be taken on the petition by the court without
13first obtaining the written recommendation of thebegin delete Director of State
14Hospitalsend delete
begin insert director of the treatment facilityend insert.

15(d) No hearing upon the petition shall be held until the person
16who is committed has been under commitment for confinement
17and care in a facility designated by the Director of State Hospitals
18for not less than one year from the date of the order of commitment.
19 No hearing upon the petition shall be held until the community
20program director designated by the State Department of State
21Hospitals submits a report to the court that makes a
22recommendation as to the appropriateness of placing the person
23in a state-operated forensic conditional release program.

24(e) 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. 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. 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.

P8    1(f) Before placing a committed person in a state-operated
2forensic conditional release program, the community program
3director designated by the State Department of State Hospitals
4shall submit a written recommendation to the court stating which
5forensic conditional release program is most appropriate for
6supervising and treating the committed person. If the court does
7not accept the community program director’s recommendation,
8the court shall specify the reason or reasons for its order on the
9record. The procedures described in Sections 1605 to 1610,
10inclusive, of the Penal Code shall apply to the person placed in
11the forensic conditional release program.

12(g) If the court determines that the person should be transferred
13to a state-operated forensic conditional release program, the
14community program director, or his or her designee, shall make
15the necessary placement arrangements and, within 30 days after
16receiving notice of the court’s finding, the person shall be placed
17in the community in accordance with the treatment and supervision
18plan unless good cause for not doing so is presented to the court.

19(h) If the court denies the petition to place the person in an
20appropriate forensic conditional release program, the person may
21not file a new application until one year has elapsed from the date
22of the denial.

23(i) In a hearing authorized by this section, the committed person
24shall have the burden of proof by a preponderance of thebegin delete evidence.end delete
25begin insert evidence, unless the report required by Section 6604.9 determines
26that conditional release to a less restrictive alternative is in the
27best interest of the person and that conditions can be imposed that
28would adequately protect the community, in which case the burden
29of proof shall be on the state to show, by a preponderance of the
30evidence, that conditional release is not appropriate.end insert

31(j) Time spent in a conditional release program pursuant to this
32section shall not count toward the term of commitment under this
33article unless the person is confined in a locked facility by the
34conditional release program, in which case the time spent in a
35locked facility shall count toward the term of commitment.

36(k) After a minimum of one year on conditional release, the
37committed person, with or without the recommendation or
38concurrence of the Director of State Hospitals, may petition the
39court for unconditional discharge. The court shall use the
40procedures described in paragraph (3) of subdivision (c) of, and
P9    1subdivisions (d) and (e) of, Section 6605 to determine if the person
2should be unconditionally discharged from commitment on the
3basis that, by reason of a diagnosed mental disorder, he or she is
4no longer a danger to the health and safety of others in that it is
5not likely that he or she will engage in sexually violent criminal
6behavior.



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