Amended in Assembly June 20, 2013

Amended in Senate May 24, 2013

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 of, and to add Section 6604.9 to, 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 person is annually reviewed to determine his or her status and by which the 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.

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 discharge and would make nonsubstantive, organizational changes to the provisions. 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 thebegin delete state.end deletebegin insert state, and would give the committed person the right to the appointment of experts, if he or she so requests.end insert The bill would also prohibit, if unconditional discharge is denied, the committed person from petitioning for unconditional discharge for one year.

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

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.

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 the consent of the director of the treatment facility without first obtaining the written recommendation of the director of the treatment facility.

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

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

P3    1

SECTION 1.  

Section 6604.9 is added to the Welfare and
2Institutions Code
, to read:

3

6604.9.  

(a) A person found to be a sexually violent predator
4and committed to the custody of the State Department of State
5Hospitals shall have a current examination of his or her mental
6condition made at least once every year. The report shall be in the
7form of a declaration and shall be prepared by a professionally
8qualified person. The person maybegin delete retain, orend deletebegin insert retain or,end insert if he or she
9is indigent and so requests, the court may appoint, a qualified
10expert or professional person to examine him or her, and the expert
11or professional person shall have access to all records concerning
12the person.

13(b) The annual report shall include consideration of whether the
14committed person currently meets the definition of a sexually
15violent predator and whether conditional release to a less restrictive
16alternative, pursuant to Section 6608, or an unconditional
17discharge, pursuant to Section 6605, is in the best interest of the
18person and conditions can be imposed that would adequately
19protect the community.

20(c) The State Department of State Hospitals shall file this
21periodic report with the court that committed the person under this
22article. A copy of the report shall be served on the prosecuting
23agency involved in the initial commitment and upon the committed
24person.

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

36(e) The court, upon receipt of the petition for conditional release
37to a less restrictive alternative, shall consider the petition using
38procedures described in Section 6608.

P4    1(f) The court, upon receiving a petition for unconditional
2discharge, shall order a show cause hearing, pursuant to the
3provisions of Section 6605, at which the court may consider the
4petition and any accompanying documentation provided by the
5medical director, the prosecuting attorney, or the committed person.

6

SEC. 2.  

Section 6605 of the Welfare and Institutions Code is
7amended to read:

8

6605.  

(a) (1) The court, upon receiving a petition for
9unconditional discharge, shall order a show cause hearing at which
10the court can consider the petition and any accompanying
11documentation provided by the medical director, the prosecuting
12attorney, or the committed person.

13(2) If the court at the show cause hearing determines that
14 probable cause exists to believe that the committed person’s
15diagnosed mental disorder has so changed that he or she is not a
16danger to the health and safety of others and is not likely to engage
17in sexually violent criminal behavior if discharged, then the court
18shall set a hearing on the issue.

19(3) At the hearing, the committed person shall have the right to
20be present and shall be entitled to the benefit of all constitutional
21protections that were afforded to him or her at the initial
22commitment proceeding. The attorney designated by the county
23pursuant to subdivision (i) of Section 6601 shall represent the state
24and shall have the right to demand a jury trial and to have the
25committed person evaluated by experts chosen by the state. The
26committed person also shall have the right to demand a jury trial
27and to have experts evaluate him or her on his or her behalf. The
28court shall appoint an expert if the person is indigent and requests
29an appointment. The burden of proof at the hearing shall be on the
30state to prove beyond a reasonable doubt that the committed
31person’s diagnosed mental disorder remains such that he or she is
32a danger to the health and safety of others and is likely to engage
33in sexually violent criminal behavior if discharged. Where the
34person’s failure to participate in or complete treatment is relied
35upon as proof that the person’s condition has not changed, and
36there is evidence to support that reliance, the jury shall be instructed
37substantially as follows:

38“The committed person’s failure to participate in or complete
39the State Department of State Hospitals Sex Offender Commitment
40Program (SOCP) are facts that, if proved, may be considered as
P5    1evidence that the committed person’s condition has not changed.
2The weight to be given that evidence is a matter for the jury to
3determine.”

4(b) If the court or jury rules against the committed person at the
5hearing conducted pursuant to subdivision (a), the term of
6commitment of the person shall run for an indeterminate period
7from the date of this ruling and the committed person may not file
8a new petition until one year has elapsed from the date of the ruling.
9If the court or jury rules for the committed person, he or she shall
10be unconditionally released and unconditionally discharged.

11(c) If the State Department of State Hospitals has reason to
12believe that a person committed to it as a sexually violent predator
13is no longer a sexually violent predator, it shall seek judicial review
14of the person’s commitment pursuant to the procedures set forth
15in Section 7250 in the superior court from which the commitment
16was made. If the superior court determines that the person is no
17longer a sexually violent predator, he or she shall be
18unconditionally released and unconditionally discharged.

19

SEC. 3.  

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
33 it 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
P6    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 the director of the treatment facility, no action shall be
12taken on the petition by the court without first obtaining the written
13recommendation of the director of the treatment facility.

14(d) 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.
18 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.

23(e) The court shall hold a hearing to determine whether the
24person committed would be a danger to the health and safety of
25others in that it is likely that he or she will engage in sexually
26violent criminal behavior due to his or her diagnosed mental
27disorder if under supervision and treatment in the community. The
28attorney designated pursuant to subdivision (i) of Section 6601
29shall represent the state and shall have the committed person
30evaluated by experts chosen by the state.begin insert The committed person
31shall have the right to the appointment of experts, if he or she so
32requestend insert
begin inserts.end insert If the court at the hearing determines that the committed
33person would not be a danger to others due to his or her diagnosed
34mental disorder while under supervision and treatment in the
35community, the court shall order the committed person placed with
36an appropriate forensic conditional release program operated by
37the state for one year. A substantial portion of the state-operated
38forensic conditional release program shall include outpatient
39supervision and treatment. The court shall retain jurisdiction of
40the person throughout the course of the program.

P7    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 the evidence,
25unless the report required by Section 6604.9 determines that
26conditional release to a less restrictive alternative is in the best
27interest of the person and that conditions can be imposed that would
28adequately protect the community, in which case the burden of
29proof shall be on the state to show, by a preponderance of the
30evidence, that conditional release is not appropriate.

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 subdivisions (a) and (b) of Section 6605
P8    1to determine if the person should be unconditionally discharged
2from commitment on the basis that, by reason of a diagnosed
3mental disorder, he or she is no longer a danger to the health and
4safety of others in that it is not likely that he or she will engage in
5sexually violent criminal behavior.



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