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 SB 295 (Emmerson) Page 1 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 SB 295 (Emmerson) Page 2 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 inparagraph (3) ofsubdivision 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.