BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Kevin de Le�n, Chair
SB 295 (Emmerson) - Sexually violent predators: conditional
release hearings.
Amended: May 7, 2013 Policy Vote: Public Safety 7-0
Urgency: No Mandate: No
Hearing Date: May 20, 2013 Consultant: Jolie Onodera
This bill meets the criteria for referral to the Suspense File.
Bill Summary: SB 295 would clarify the process and procedural
guidelines to be used by the courts for sexually violent
predator petitions, whether with or without Department of State
Hospitals (DSH) concurrence, for conditional and unconditional
release.
Fiscal Impact: Annual costs of $38,000 (General Fund) for the
DSH to submit additional recommendations to the court.
Background: 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. Existing law defines a sexually violent
predator as a person "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."
Under existing law, Welfare and Institutions Code (WIC) �� 6606
and 6608 provide for procedures whereby an individual committed
to the DSH may seek release from SVP commitment either through
(1) conditional release to a less restrictive alternative if it
is in the best interest of the person and conditions can be
imposed that adequately protect the community, or, (2)
unconditional discharge if the person's condition has so changed
that the person no longer meets the definition of an SVP.
WIC � 6605 speaks to petitions for conditional and unconditional
release based on recommendations from DSH, however, only the
court procedures for determination of granting unconditional
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discharge are outlined in this section. In People v. Smith
(2013) 212 Cal.App.4th 1398, 1405, the court held that WIC �
6605 is ambiguous because it grants a person with a
recommendation for conditional release the ability to file a
petition for release, but provides no procedures for doing so.
The court found that due process requires the person to be given
a jury trial, just as the state must do for petitions for
unconditional release, at which the state must prove beyond a
reasonable doubt that he or she is not safe for conditional
release.
WIC � 6608 outlines the process for petitions for conditional
release without the recommendation or concurrence of DSH. At
hearings on these petitions, the person has the burden of proof
by a preponderance of the evidence to establish that he or she
can be safely released under supervision and treatment. Prior to
Proposition 83 (2006), statute reflected that the petitions
under this section were for conditional release and "subsequent"
discharge. Proposition 83 struck the word "subsequent" and
additional ambiguity was created, as there are no procedures for
hearings within WIC � 6608 for petitions for unconditional
discharge without DSH concurrence. This bill seeks to clarify
the process and procedural guidelines to be used by the courts
for SVP petitions, whether with or without DSH concurrence, for
conditional and unconditional release.
Proposed Law: This bill:
Provides that upon the DSH annual report on the mental
status of an SVP patient finding 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 WIC
� 6608, as follows:
o 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.
o If the petition for conditional release is
denied by the court, the SVP may not file another
petition for conditional release for one year.
Provides that where an SVP patient files a petition for
conditional release without the concurrence or
recommendation of the director of the treatment facility,
the court may not act on the petition until the court
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obtains the written recommendation of the director.
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 or she would not likely commit
sexually violent offenses if unconditionally released.
Provides that after at least one 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.
Staff Comments: The DSH has indicated the provisions of this
bill would impose new costs due to the requirement for community
program directors to submit a report to the court for WIC � 6608
petitions. To the extent the DSH prepares and submits an
additional 25 written recommendations to the court per year,
based on a unit cost of $1,530 per recommendation annual costs
of approximately $38,000 (General Fund) would be incurred.
Recommended Amendments: Staff offers the following technical
amendment to WIC � 6608 to update cross-references to WIC � 6605
as proposed to be amended:
6608 (k) After a minimum of one year on conditional
release, the committed person, with or without the
recommendation or concurrence of the Director of State
Hospitals, may petition the court for unconditional
discharge. The court shall use the procedures described
in paragraph (3) of subdivision s (a) and (b) (c) of , and
subdivisions (d) and (e) of, Section 6605 to determine
if the person should be unconditionally discharged from
commitment on the basis that, by reason of a diagnosed
mental disorder, he or she is no longer a danger to the
health and safety of others in that it is not likely
that he or she will engage in sexually violent criminal
behavior.