BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2013-2014 Regular Session               B

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          SB 295 (Emmerson)                                           
          As Amended March 21, 2013
          Hearing date:  April 30, 2013
          Welfare and Institutions Code
          JM:mc

                          SEXUALLY VIOLENT PREDATORS PROGRAM:

                            CONDITIONAL RELEASE HEARINGS  



                                       HISTORY

          Source:  San Joaquin County District Attorney; Riverside County  
          District Attorney; San Bernardino County District Attorney

          Prior Legislation: Proposition 83, November 2006 General  
          Election
                       SB 1128 (Alquist) - Ch. 337, Statutes 2006
                       AB 893 (Horton) - Ch. 162, Stats. 2005
                       AB 2450 (Canciamilla) - Ch. 425, Stats. 2004
                       AB 493 (Salinas) - Ch. 222, Stats. 2004
                       SB 659 (Correa) - Ch. 248, Stats. 2001
                       AB 1142 (Runner) - Ch. 323, Stats. 2001
                       SB 2018 (Schiff) - Ch. 420, Stats. 2000
                       SB 451 (Schiff) - Ch. 41, Stats. 2000
                       AB 2849 (Havice) - Ch. 643, Stats. 2000
                       SB 746 (Schiff) - Ch. 995, Stats. 1999
                       SB 11 (Schiff) - Ch. 136, Stats. 1999
                       SB 1976 (Mountjoy) - Ch. 961, Stats. 1998
                       AB 888 (Rogan) - Ch. 763, Stats. 1995
                       SB 1143 (Mountjoy) - Ch. 764, Stats 1995




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                                                          SB 295 (Emmerson)
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           Support: California District Attorneys Association

          Opposition:California Public Defenders Association


          NOTE:  THIS BILL IS ANALYZED AS PROPOSED TO BE AMENDED IN  
          COMMITTEE.


                                        KEY ISSUES
           
          WHERE A SEXUALLY VIOLENT PREDATOR PATIENT, WITH THE RECOMMENDATION  
          OF THE DEPARTMENT OF STATE HOSPITALS, FILES A PETITION FOR  
          CONDITIONAL RELEASE, SHOULD THE STATE BEAR THE BURDEN OF PROOF BY A  
          PREPONDERANCE OF THE EVIDENCE IN ANY CHALLENGE TO THE PETITION?

          WHERE AN SVP PATIENT HAS BEEN CONDITIONALLY RELEASED FOR AT LEAST A  
          YEAR, SHOULD HE BE AUTHORIZED TO SEEK UNCONDITIONAL RELEASE IN A  
          TRIAL WHERE THE STATE WOULD BEAR THE BURDEN TO PROVE BEYOND A  
          REASONABLE DOUBT THAT HE REMAINS AN SVP?



                                       PURPOSE

          The purposes of this bill are to provide that where the  
          Department of State Hospitals (DSH) recommends or finds that a  
          person may be safely and conditionally released under treatment,  
          the state shall have the burden of proving to the court by a  
          preponderance of evidence that the person should not be  
          released; 2) provide that the court shall not act on a petition  
          for conditional release filed without the consent of the  
          Director of DSH until the director makes its recommendation to  
          the court; and 3) provide that after an SVP patient has been on  
          conditional release for at least one year, he<1> can file a  
          petition for unconditional release with or without the  
          concurrence of DSH and shall be entitled to a jury trial in  
          which the state would be required to prove beyond a reasonable  


          ---------------------------
          <1> There has been only one female SVP patient.



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          doubt that he is still an SVP. 

           
           The SVP Law Generally, and Procedures for Indeterminate  
          Commitment
           
          The Sexually Violent Predator (SVP) law  provides for the  
          indefinite civil commitment for psychiatric and psychological  
          treatment of a prison inmate found to be a sexually violent  
          predator after the person has served his or her prison  
          commitment.  (Welf. & Inst. Code § 6600, et seq.)

           Existing law  defines a sexually violent predator as an inmate  
          "who has been convicted of a sexually violent offense against  
          one or more victims 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).)

           Existing law  defines a "diagnosed mental disorder" as one that  
          includes "a congenital or acquired condition affecting the  
          emotional or volitional capacity that predisposes the person to  
          the commission of criminal sexual acts in a degree constituting  
          the person a menace to the health and safety of others."  (Welf.  
          & Inst. Code § 6600, subd. (c).)

           Existing law  provides that where the Department of Corrections  
          and Rehabilitation determines that an inmate fits the criteria  
          for evaluation as an SVP, the inmate shall be referred for  
          evaluation to the Department of State Hospitals (DSH).  (Welf. &  
          Inst. Code § 6601, subd. (b).)

           Existing law  provides that the inmate "shall be evaluated by two  
          practicing psychiatrists or psychologists, or one practicing  
          psychiatrist and one practicing psychologist, designated by the  









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          Director of the Department of State <2>Hospitals."  If both  
          evaluators concur that the person meets the criteria for SVP  
          commitment, DSH shall request a prosecutor to file a commitment  
          petition.  (Welf. & Inst. Code § 6601, subd. (d).)

           Existing law  provides that if the evaluators designated by DSH  
          disagree, additional, independent evaluators are appointed.  The  
          second pair of evaluators must agree that the person meets the  
          requirement for SVP commitment or the case cannot proceed.   
          (Welf. & Inst. Code § 6601, subd. (c)-(e).)
           
          Existing law  provides for a hearing procedure to determine  
          whether there is probable cause to believe that a person who is  
          the subject of a petition for civil commitment as an SVP is  
          likely to engage in sexually violent predatory criminal behavior  
          upon his or her release from prison.  (Welf.  Inst. Code §  
          6602.)

           Existing law  requires a jury trial at the request of either  
          party with a determination beyond a reasonable doubt that the  
          person is an SVP.  (Welf. & Inst. Code § 6603.)

          Required Annual Evaluation of an SVP Patient's Mental State and  
          Authorized Petitions for Release
          
           Existing law  (Welf. & Inst. Code § 6605, subds. (a)-(b))  
          provides that an SVP patient shall have a "current evaluation of  
          his or her mental condition at least once a year."  The  
          following applies to the evaluation process and the report  
          documenting the evaluation:

                 The ? report ? shall ? [consider] whether [the SVP  
               patient] currently meets the definition of an [SVP] and  
               whether conditional release ? or an unconditional release  
               is in the best interest of the person and conditions can be  
               imposed that would adequately protect the community."  
             --------------------------
          <2> Not all relevant code sections have been amended to reflect  
          that the former Department of Mental Health is now the  
          Department of State Hospitals.  This bill refers to DSH,  
          including where  the governing statute.



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                 "The report shall be in the form of a declaration<3> and  
               shall be prepared by a professionally qualified person."
                 DSH shall file the evaluation report with the court from  
               which the SVP patient was committed for treatment.
                 The committed SVP may hire an expert, or the court may  
               appoint an expert for the patient if he is indigent.  The  
               expert shall have access to all relevant case records.
                 If the report concludes either 1) that the patient is no  
               longer an SVP, or 2) that release to a less restrictive  
               alternative than the hospital setting is in his best  
               interest and that conditions of release can be imposed so  
               as to adequately protect the community, the DSH director  
               shall authorize the SVP patient to petition for either of  
               the following:
                  o         conditional release to a less restrictive  
                    setting; 
                  o         unconditional release from commitment.

           Existing law  provides that the court, upon filing of the  
          petition, shall hold a "show cause" hearing to determine if  
          there is probable cause that the committed person's condition  
          has changed such that he would not engage in sexually violent  
          behavior in the community or that release to less restrictive  
          environment would benefit the SVP patient while keeping the  
          community safe.  (Welf. & Inst. Code § 6605, subds. (b)-(c).) 

           Existing law  provides that where the court finds probable cause  
          that the person's condition has changed, the court shall set a  
          hearing at which the following shall apply:

                 The SVP patient shall have all the rights afforded him  
               at the original commitment trial, including appointment of  
               an expert.
                 The prosecutor may have the patient evaluated by an  
               expert chosen by the state.
                 Either the SVP patient or the prosecutor may demand a  
               jury trial.
                 At the trial, the prosecution must prove beyond a  

             --------------------------
          <3> A declaration would appear to mean a statement made under  
          penalty of perjury.



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               reasonable doubt that the patient's mental disorder remains  
               such that he would likely commit sexually violent offenses  
               in the community if released. (Welf. & Inst. Code § 6605,  
               subds. (c)-(d).)

          Petitions for Conditional Release Without the Concurrence of DSH
           
            Existing law  provides that an SVP patient may be conditionally  
          released into the community for treatment if he or she would not  
          be a danger to others:

                 The court can dismiss a frivolous petition, as  
               specified.
                 The SVP patient bears the burden of proof by a  
               preponderance of the evidence.
                 The court shall order release if it finds that it is not  
               likely that the person will engage in sexually violent  
               criminal behavior if placed under supervision and treatment  
               in the community.
                 The court retains jurisdiction over a conditionally  
               released SVP.  (Welf. & Inst. Code § 6608, subd. (a).)

           Existing law  , despite a reference to "unconditional discharge"  
          in subdivision (a) of Welfare and Institutions Code section  
          6608, includes no process where a court or a jury could find  
          that an SVP patient should be unconditionally released.  Section  
          6608 includes no standards for the court to determine if  
          unconditional release should be granted.  Section 6608 includes  
          no cross-reference to section 6605, the section governing trials  
          for unconditional release.  (Welf. & Inst. Code § 6608, subd.  
          (a).)
           
          This bill  , as proposed to be amended in committee, provides that  
          where DSH in the annual report on the mental status of an SVP  
          patient finds that the conditional discharge would be in the  
          best interests of the patient under conditions that would  
          protect the public, the patient may only file a petition  
          pursuant to the procedures in Welfare and Institutions Code  
          Section 6608, as follows:





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                 The state shall have the burden of proof by a  
               preponderance of the evidence that the SVP   would be  
               likely to commit sexually violent offenses if conditionally  
               released.
                 If the petition for conditional release is denied by  
               court, the SVP may not file another petition for  
               conditional release for one year.
           
          This bill  provides that where an SVP patient files a petition or  
          conditional release without the concurrence or recommendation of  
          the director, the court may not act on the petition until the  
          court obtains the written recommendation of the director.

           This bill  provides that where a show cause hearing is held to  
          consider a DSH determination that an SVP patient is no longer an  
          SVP, the patient SVP has the burden to establish probable cause  
          that he would not likely commit sexually violent offenses if  
          unconditionally released.

           This bill  provides that after at least a year on conditional  
          release, the SVP patient may file a petition for unconditional  
          release.  If the court finds probable cause to support the  
          petition, the state shall bear the burden to prove to a jury  
          beyond a reasonable doubt that the person is still an SVP.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  




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          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order issued by the Three-Judge Court three years  
          earlier to reduce the state's prison population to 137.5 percent  
          of design capacity.  The State submitted in part that the, ". .  
          .  population in the State's 33 prisons has been reduced by over  
          24,000 inmates since October 2011 when public safety realignment  
          went into effect, by more than 36,000 inmates compared to the  
          2008 population . . . , and by nearly 42,000 inmates since 2006  
          . . . ."  Plaintiffs, who opposed the state's motion, argue in  
          part that, "California prisons, which currently average 150% of  
          capacity, and reach as high as 185% of capacity at one prison,  
          continue to deliver health care that is constitutionally  
          deficient."  In an order dated January 29, 2013, the federal  
          court granted the state a six-month extension to achieve the  
          137.5 % prisoner population cap by December 31st of this year.  

          In an order dated April 11, 2013, the Three-Judge Court denied  
          the state's motions, and ordered the state of California to  
          "immediately take all steps necessary to comply with this  
          Court's . . . Order . . . requiring defendants to reduce overall  
          prison population to 137.5% design capacity by December 31,  
          2013."         

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unresolved.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  




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          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.




                                      COMMENTS

          1.  Need for This Bill  

               Welfare and Institutions Code Sections 6605 and 6608  
               currently describe procedures whereby a person  
               committed to the Department of State Hospitals (DSH)  
               as a sexually violent predator (SVP) can seek release  
               from commitment.  These statutes attempt to describe  
               the procedures whereby an SVP can seek conditional  
               release to a less restrictive alternative or an  
               unconditional discharge.  Unfortunately, these  
               statutes are confusing, poorly drafted, and  
               incomplete.

               Section 6605 provides that an SVP may seek conditional  
               release when DSH deems the person safe to be released  
               to a less restrictive setting, or unconditional  
               discharge when the person no longer qualifies as an  
               SVP.  While Section 6605 describes the procedure to be  
               used by a court to determine whether an SVP should be  




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               unconditionally discharged, it fails to provide the  
               procedure that the court must use to determine whether  
               an SVP should be granted conditional release.   
               Strangely enough, these guidelines exist in Section  
               6608.  

               Additionally, Section 6608, which relates to release  
               from SVP commitment when DSH does not agree that the  
               SVP is no longer a risk to the public or believes the  
               SVP still meets the criteria of an SVP, is less than  
               clear as it relates to an SVP seeking unconditional  
               discharge.  The intent of the SVP Act, and subsequent  
               case law interpreting the same, is that an SVP may  
               only seek unconditional discharge when DSH concurs  
               with such premise (pursuant to Section 6605) or after  
               at least one year of conditional release (Section  
               6608). (See People v. Cheek (2001) 25 Cal.4th 894,  
               902; People v. McKee (2012) 207 Cal.App.4th 1325,  
               1334.)  Further, Section 6608 allows an SVP to  
               petition for unconditional discharge even when DSH  
               still believes the SVP meets the criteria to qualify  
               as an SVP, but fails to describe any procedures to be  
               used by a court to determine if an SVP should be  
               unconditionally discharged.  This supports the notion  
               that unconditional discharge under Section 6608 may  
               only come after a period of conditional release.

          2.  Petitions for Conditional Release Based on the DSH  
            Recommendation - Due Process and Related Issues  

          Civil Commitment Generally

          The United States and California Supreme Courts have  
          consistently held that involuntary confinement for mental health  
          treatment is a severe curtailment of liberty.  Civil commitment  
          schemes must be justified by compelling state interests.   
          (Foucha v. Louisiana (1992) 504 U.S. 71, 77; People v. McKee,  
          supra, 47 Cal.4th at p. 1193.)

          Propositions 83 in 2006 - Indeterminate Commitment of SVPs  




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          instead of Two-Year Commitment
          
          In 2006, Proposition 83 (Jessica's Law) provided that a person  
          found to be a sexually violent predator (SVP) in a jury trial  
          was to be civilly committed to the Department of State Hospitals  
          for an indefinite period of time.  Prior to enactment of  
          Proposition 83, the SVP was entitled to a full jury trial every  
          two years at which the prosecution had to prove again the  
          person's status as an SVP.

          The indefinite commitment provision in Proposition 83 has been  
          challenged in the California Court of Appeal and the California  
          Supreme Court on the grounds that it violates the constitutional  
          guarantees of due process and equal protection of the laws.

          Due Process Concerns from Indefinite Commitments and Alternative  
          Methods of Seeking Release 


          As to due process:  SVP patients argued that the change from a  
          recommitment trial every two years to an indefinite commitment  
          violated due process of the law by unreasonably restricting or  
          eliminating any reasonable chance for freedom.  The California  
          Supreme Court rejected the claim that an indefinite commitment  
          violates due process.  The Supreme Court noted that DSH must  
          annually evaluate an SVP patient's mental state.  If DSH finds  
          either that the person is no longer an SVP, or that he may be  
          conditionally released into the community under supervision that  
          would protect public safety, the SVP patient may file a petition  
          for unconditional or conditional release.  Where the patient  
          files a petition for conditional or unconditional release, the  
          state bears the burden of proving that the person's involuntary  
          treatment must continue.  (People v. McKee, supra, 47 Cal.4th at  
          p. 1185-1188.)

          In upholding the constitutionality of an indefinite commitment,  
                                                                                 the Supreme Court in McKee stressed that due process requires  
          that an SVP have a reasonable opportunity to seek and obtain  
          release.  The court noted that civil commitment ? is  
          constitutional so long as it is accompanied by appropriate  




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          constitutional protections.  (Id, at p.1188.)  The court also  
          then noted:   "[The annual examination [of the SVP patient's  
          mental status] occurs [to determine] whether involuntary  
          commitment is still required, or whether the SVP has  
          sufficiently changed as result of treatment to be released."   
          (Id, at pp. 1192-1193.)  Further, the court stated that making  
          it overly burdensome for an SVP to petition for release without  
          the concurrence of DSH - for example, by not appointing experts  
          to assist the patient - would violate due process.  (People v.  
          McKee, supra, 47 Cal.4th at pp. 1192-1193.)

          Ambiguity in the Statute Authorizing Petitions for Conditional  
          Release with DSH Recommendation:  Court Ruling that an SVP  
          Patient is Entitled to a Jury Trial upon Proof Beyond a  
          Reasonable Doubt

          The Court of Appeal in People v. Smith (2013) 212 Cal.App.4th  
          1398, 1405 and People v. Landau (2011) 199 Cal.App.4th 31, 35-40  
          held that where DSH in the annual examination authorizes an SVP  
          patient to petition for conditional release, any challenge by  
          the state must be made in a jury trial pursuant to Section 6605  
          where the state has the burden of proving beyond a reasonable  
          doubt that the patient is not safe for release.

          The court in Smith held that while Section 6605 is ambiguous  
          because it requires an annual report and authorizes a petition  
          for unconditional or conditional release in two subdivisions,  
          but only refers to a trial on the issue of unconditional release  
          in the rest of the section.  That is, Section 6605 grants a  
          patient with a recommendation for conditional release to file a  
          petition for such release, but effectively provides no  
          procedures for doing so.  (People v. Smith, supra, 212  
          Cal.App.4th 1398, 1405.)  The court then essentially found that  
          due process and the purposes for the annual report process  
          requires that the SVP patient who has been recommended for  
          conditional release be given a jury at which the state must  
          prove beyond a reasonable doubt that he is not safe for  
          conditional release, just as the state must do on the issue of  






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          unconditional release.  (Id, at pp. 1402-1403.)<4>

          This Bill would Explicitly Create Procedures for a Conditional  
          Release Trial where the State Bears the Burden of Proof by a  
          Preponderance of the Evidence
          
          The sponsors and author of this bill argue that the SVP statute  
          should be amended to direct the court to use the procedures in  
          Section 6608 for a trial concerning conditional release.  Since  
          the enactment of the SVP law, Section 6608 has set the  
          procedures and standards for petitions filed by the patient for  
          conditional release without the concurrence of DSH.  

          This bill, places the burden on the state to prove by a  
          preponderance of the evidence that an SVP patient who has been  
          recommended for release in the annual DSH report should not be  
          conditionally.  Except for the burden of proof being placed on  
          the state, the conditional release trial following a positive  
          recommendation in the annual examination would follow the  
          standards and procedures in Section 6608.  These include that  
          the trial would be before a judge and that the standard of proof  
          would be a preponderance of the evidence.   

          Due Process Issues Concerning a Court Trial and Preponderance of  
          the Evidence Standard for Conditional Release Trials
          
          Using a court trial process and a preponderance of the evidence  
          standard for conditional release trials could be challenged as  
          denying due process. That argument would be based on the fact  
          that a trial concerning unconditional release requires the state  
          to prove beyond a reasonable doubt that the person is an SVP.

          The justification for specifying that a conditional release  
          trial should be to a judge would appear to be that the  
          ---------------------------
          <4> As with so much about the SVP statute and the decisions  
          interpreting the law as it has been amended around a dozen  
          times, the basis for the ruling in Smith is not as clear as it  
          could be. The decision refers to constitutional protections and  
          voter intent without much distinction as to how those  
          considerations affect the ruling.  



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          conditional release program (CONREP) involves monitoring by the  
          court.  The conditional release decision involves a projection  
          of how well the SVP patient will perform on CONREP.  At the end  
          of at least a year on CONREP, the court must determine if the  
          SVP patient should be unconditionally released, kept on  
          conditional release with perhaps new conditions or returned to  
          in-patient status.  Arguably, these are equivalent to sentencing  
          decisions, and sentencing is an inherently judicial function.   
          The finder of fact does not simply find that the person is or is  
          not an SVP.

          As to the burden of proof:  Where DSH recommends an SVP patient  
          for conditional release by DSH, DSH necessarily has concluded  
          that the patient is still an SVP.  DSH has essentially  
          recommended that the patient be placed on a higher level in the  
          treatment process.  A conditionally released person can be  
          returned to secure confinement and treatment for any violation  
          of the conditions of release.  It appears that proof of a  
          violation of the conditions of release would be by a  
          preponderance of the evidence.    

          3.  Requirement that an SVP Patient Establish Probable Cause for  
            Unconditional Release 
             Before a Hearing can be Held  

          Under existing law, where DSH, pursuant to an evaluation by a  
          professionally qualified person, authorizes an SVP patient to  
          file a petition for unconditional release,<5> the court is  
          directed to hold a probable cause hearing.  If the court finds  
          that probable cause that the person would not likely commit  
          sexually violent offenses, the court shall order a trial at  
          which the state, in order to block release, would have to prove  
          beyond a reasonable doubt that the person is still an SVP.

          This bill requires the SVP patient to establish probable cause  
          before a full trial can be set.  This assignment of a burden of  
          ---------------------------
          <5> As discussed above, because of ambiguities in the law, this  
          process has been held to also apply to petitions for conditional  
          release.  (People v. Smith, supra, 212 Cal.App.4th 1398,  
          1402-1405.)



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          proof to the SVP patient arguably violates due process.  The  
          probable cause hearing for unconditional release only occurs  
          after a qualified expert at DSH has recommended that the SVP  
          patient be unconditionally released.  As the treating entity no  
          longer believes that the person must be committed, placing  
          significant burdens on the SVP patient's efforts to obtain  
          release could well violate due process.  (People v. McKee,  
          supra, 47 Cal.4th at pp. 1192-1193.)  For example, the Supreme  
          Court in McKee state that not appointing experts to assist an  
          indigent SVP patient in seeking conditional release without the  
          concurrence of DSH would violate due process.)

          The bill provides that an SVP patient may petition for  
          unconditional release after at least a year on conditional  
          release.  The trial process would be the same as the original  
          commitment trial: The state must prove beyond a reasonable doubt  
          (to a jury if demanded by either side) that the conditionally  
          released patient is still an SVP, This bill also, however,  
          requires the SVP patient to establish probable cause for  
          unconditional release.  To avoid due process problems, it is  
          suggested that where DSH concurs with the recommendation for  
          release, the state shall have the burden to show lack of  
          probable cause.  Where DSH does not concur, the SVP patient  
          should bear that burden.

          WHERE DSH FINDS THAT A PERSON IS NO LONGER AN SVP AND RECOMMENDS  
          RELEASE, SHOULD THE STATE BEAR THE BURDEN TO NEGATE PROBABLE  
          CAUSE FOR RELEASE?

          WHERE DSH DOES NOT CONCUR THAT A CONDITIONALLY RELEASED SVP  
          SHOULD BE UNCONDITIONALLY RELEASED, SHOULE THE SVP PATIENT BEAR  
          THE BURDEN TO ESTABLISH PROBABLE CAUSE FOR RELEASE?

          4.  Procedures for Petitions for Conditional Release Filed Without  
            the Concurrence of DSH  

          Section 6608 authorizes an SVP to file a petition for  
          conditional release without the concurrence of DSH.<6> At the  
          hearing on the petition, the SVP patient has the burden of proof  


          ---------------------------
          <6> The existing statute refers to the Director of DSH.



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          by a preponderance of the evidence to establish that he can be  
          safely released under supervision and treatment.

          Prior to Propositions 83 (Jessica's Law) in 2006, the statute  
          stated that the petition was for conditional release and  
          "subsequent" discharge.  Proposition 83 struck the word  
          "subsequent," creating a significant ambiguity.  There are no  
          procedures in Section 6608 for a hearing on unconditional  
          discharge.  The procedures for unconditional discharge are found  
          in Section 6605, which concerns circumstances where DSH  
          recommends release in the annual review.  

          Prior to enactment of Proposition 83, the court would determine  
          after at least a year on conditional release whether or not an  
          SVP patient should be unconditionally released.  This bill would  
          provide that after at least a year on conditional release, the  
          SVP patient may file a petition for unconditional discharge.  If  
          the court finds probable cause to support the petition, the  
          state shall have the burden of proving to a jury beyond a  
          reasonable doubt that the person is still an SVP.  

          5.  Requirement that the DSH Director make a Recommendation  
            concerning Conditional Release before a Court may Act on a  
            Petition Filed without the Concurrence of DSH  

          This bill provides that where the petition for conditional  
          releases is done "without the consent of the Director of State  
          Hospitals, no action shall be taken on the petition by the court  
          without first obtaining the written recommendation of the  
          [director]."   The bill does not provide that the court can only  
          act if the director recommends release.  Existing law provides  
          that the court shall not act on the petition until the court  
          receives the "written recommendation of the director of the  
          treatment facility."  (Welf. & Inst. Code § 6608, subd. (j),  
          italics added.)









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          The California Public Defenders Association (CPDA) objects to  
          the requirement that the Director of the Department of State  
          Hospitals, not the director of the treatment facility, makes his  
          or her recommendation to the court.  CPDA notes that the  
          Director of DSH has never supported a petition for conditional  
          release.

          This provision does raise issues about whether considerations  
          other than the progress of an SVP patient in treatment could  
          influence the recommendation of the director.  The director  
          would not likely have been involved in evaluating or monitoring  
          the SVP patient's course of treatment.   The director need not  
          have any expertise in the treatment of sex offenders.  

          The Court of Appeal in People v. Landau, supra, 199 Cal.App.4th  
          31, 35-40, has clearly held that where the evaluator in an  
          annual examination of an SVP patient's mental state finds that  
          the patient is no longer an SVP or can be conditionally released  
          safely, the department director must authorize the patient to  
          file a petition for unconditional or conditional release,  
          depending on the finding of the evaluator.  The director cannot  
          simply overrule the evaluation or recommendation.  The court  
          relied on provisions concerning the original commitment trial,  
          which require the director to request that the district attorney  
          file a petition for commitment if two experts find that the  
          person is likely an SVP.  The court ruled as a matter of  
          statutory construction; it did not consider a due process claim.  
           The court remanded the matter to the trial court with  
          directions that the court set a jury trial on the conditional  
          release issue.  (Id, at pp.  39-40.)    

          The SVP law directs the department to conduct evaluations  
          "pursuant to a standardized assessment protocol.  The  
          standardized assessment protocol shall require assessment of  
          diagnosable mental disorders, as well as various factors known  
          to be associated with the risk of reoffense among sex offenders.  
          Risk factors to be considered shall include criminal and  
          psychosexual history, type, degree, and duration of sexual  
          deviance, and severity of mental disorder."  (Welf. & Inst. Code  
          § 6601, subd. (c).)  This provision clearly contemplates that  




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          DSH evaluations and assessments must be guided by accepted  
          scientific, psychiatric and psychological principles.   

          The director is appointed by the Governor, creating the  
          possibility that the bases for recommendations could change with  
          changes in administrations.  These changes could benefit or harm  
          the chances that a person would be granted conditional release,  
          depending on the director or person who advises the director.   
          In this regard, it should be noted that the Clinical Director of  
          Evaluation Services has recently rejected evaluations by  
          experienced experts that a person is an SVP, apparently  
          challenging the evaluation standards and methods that have been  
          previously used. 

          The history of the SVP law establishes that the treatment and  
          releases of sex offenders is highly controversial and sensitive.  
           DSH directors face tremendous political and public pressure in  
          these cases.  It is recommended that the bill be amended to  
          require the court in a trial for conditional release without the  
          consent of the director of the treatment facility to obtain the  
          facility director's recommendation before acting on the  
          petition.

          SHOULD THE BILL BE AMENDED TO PROVIDE THAT THE COURT SHALL NOT  
          ACT ON A PETITION FOR CONDITIONAL RELEASE UNTIL THE DIRECTOR OF  
          THE TREATMENT FACILITY MAKES HIS OR HER RECOMMENDATION TO THE  
          COURT?

          6. Expansion of Eligibility for SVP Evaluation in 2006 have  
            Strained the Ability of DMH to Perform SVP Commitment  
            Evaluations  

          Proposition 83 of the 2006 General Election (Jessica's Law)  
          changed the basic criteria for evaluation of an inmates as an  
          SVP.  Previously, a person could be evaluated as an SVP if he<7>  
           committed predatory sexual crimes against more than one victim.  
           Pursuant to the changes made by Proposition 83, an inmate may  
          be evaluated as a possible SVP if he committed a predatory  
          sexual offense against one person.  A predatory offense is one  



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          <7> Virtually all SVPs are men.











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          committed against a stranger or a person with whom the  
          perpetrator cultivated a relationship for purposes of abuse.
           
          CDCR must examine prison records to find any inmate who has been  
          convicted of a qualifying sex crime (most sex crimes qualify)  
          against a non-family member.  Such inmates are then referred to  
          DMH for full evaluation.  After an initial evaluation by trained  
          screeners, these inmates are referred to expert psychiatrists or  
          psychologists for full evaluation.

          The changes in criteria for evaluation of potential SVPs have  
          increased the number of evaluations performed by DMH experts 10  
          fold, from approximately 50 to 500 per month.  DMH, or any  
          agency, would be hard-pressed to meet such a challenge.  

          DSH no longer publishes data about the number of patients in the  
          SVP program, the number of persons evaluate and the cost of  
          treatment.  The Governor's 2013/2014 Budget<8> projects an SVP  
          patient population of 857 in that fiscal year.  The annual cost  
          per SVP patient has recently been described as being  
          approximately $180,000.  Evaluation costs are in the tens of  
          millions of dollars.  


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          ---------------------------
          <8>  
          http://dsh.ca.gov/AboutUs/docs/2013-14_Gov_Budget_Highlights.pdf.