BILL ANALYSIS                                                                                                                                                                                                    Ó




                   Senate Appropriations Committee Fiscal Summary
                            Senator Kevin de León, 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.