BILL ANALYSIS �
SB 295
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Date of Hearing: June 25, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 295 (Emmerson) - As Amended: June 20, 2013
SUMMARY : Revises the procedures to be used by the courts for
sexually violent predator (SVP) petitions, whether with or
without Department of State Hospitals (DSH) concurrence, for
conditional release and unconditional discharge. Specifically,
this bill :
1)Provides that where a 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 obtains the written
recommendation of that director.
2)Requires the community program director designated by the DSH
to submit a report to the court making a recommendation as to
the appropriateness of placement of the petitioner in a
state-operated, forensic, conditional-release program before
the court holds a hearing.
3)Requires that the state be represented by specified counsel at
the hearing.
4)Mandates that the committed person be evaluated by
state-chosen experts.
5)Entitles the petitioner to the appointment of experts, if he
or she requests them, for the hearing on the petition for
conditional release.
6)Shifts the burden of proof to the state to prove by a
preponderance of the evidence that conditional release is
inappropriate when the DSH annual report on the mental status
of the SVP finds that the conditional discharge would be in
the patient's best interests and that conditions to protect
the public could be imposed.
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7)Eliminates the ability of a SVP to petition for unconditional
discharge without the concurrence of DSH unless the person has
been on at least one year of conditional release.
8)Precludes the committed person from filing a subsequent
petition for conditional release for one year after the denial
of a petition.
9)Makes other non-substantive and organizational changes.
EXISTING LAW :
1)Provides for the civil commitment for psychiatric and
psychological treatment of a prison inmate found to be a SVP
after the person has served his or her prison commitment.
[Welfare & Institutions Code (WIC) Section 6600, et seq.)
2)Defines a "sexually violent predator" as "a person who has
been convicted of a sexually violent offense against at least
one victim, 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." [WIC Section 6600(a)(1).]
3)Permits a person committed as a SVP to be held for an
indeterminate term upon commitment. (WIC Section 6604.)
4)Requires that a person found to have been a SVP and committed
to the DSH have a current examination on his or her mental
condition made at least yearly. The report shall include
consideration of conditional release to a less restrictive
alternative or an unconditional release is in the best
interest of the person and also what conditions can be imposed
to adequately protect the community. [WIC Section 6605(a).]
5)Allows a SVP to seek conditional release with the
authorization of the Director of DSH when DSH determines that
the person's condition has so changed that he or she no longer
meets the SVP criteria, or when conditional release is in the
person's best interest and conditions to adequately protect
the public can be imposed. [WIC Section 6605(b).]
6)Allows a person committed as a SVP to petition for conditional
release or an unconditional discharge any time after one year
of commitment, notwithstanding the lack of recommendation or
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concurrence by the Director of DSH. [WIC Section 6608(a).]
7)Prohibits a hearing on a petition for conditional release or
an unconditional discharge before one year for the date of the
order of commitment. [WIC Section 6608(c).]
8)Allows the court to dismiss a petition for release without DSH
concurrence when the court deems it frivolous, and requires
the court to hold a hearing on such a petition only if it is
not based on frivolous grounds. [WIC Section 6608(a).]
9)Permits the court to dismiss subsequent petitions after a
petition has been deemed frivolous unless it contains facts
showing a change in the SVP's condition warranting a hearing.
[WIC Section 6608(a).]
10) Entitles a person petitioning for conditional release or
unconditional discharge to the assistance of counsel. [WIC
Section 6608(a).]
11) Places the burden of proof on the petitioner to prove by a
preponderance of the evidence that he or she is entitled to
release. [WIC Section 6608(i).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Senate Bill 295
is intended to clarify the procedures to be used when Sexually
Violent Predators (SVP) are seeking release from civil
confinement. These procedures are located in Welfare and
Institution Codes 6605 and 6608 but are unfortunately
incomplete and ambiguous. Specifically, this bill would
direct the court to use the procedures in Welfare and
Institutions code 6608 when a Sexually Violent Predator is
seeking conditional release, which is a less restrictive
alternative than the hospital setting where that offender is
currently being held. It would also clarify in Section 6608
that an SVP may only seek an unconditional discharge after at
least one year of conditional release is completed. This is
in the state's best interest because the intent of the SVP Act
is that an SVP may only seek unconditional discharge when the
Department of State Hospitals agrees that he no longer
qualifies as such or after at least one year of conditional
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release. The bill further directs the court to use the
existing procedural guidelines defined in Section 6605 when an
SVP petitions for unconditional discharge. Clarifying these
procedures in current law will benefit all parties involved in
these SVP commitments and ensure that these individuals cannot
re-enter society until it has been deemed safe to do so."
2)SVP Law Generally : The Sexually Violent Predator Act (SVPA)
establishes an extended civil commitment scheme for sex
offenders who are about to be released from prison, but are
referred to the DSH for treatment in a state hospital because
they have suffered from a mental illness which causes them to
be a danger to the safety of others.
DSH uses a specified criterion to determine whether or not an
individual qualifies for treatment as a SVP. Under existing
law, a person may be deemed a SVP if: (a) the defendant has
committed specified sex offenses against two or more victims;
(b) the defendant has a diagnosable 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; and, (3) two licensed psychiatrists or
psychologists concur in the diagnosis. If both clinical
evaluators find that the person meets the criteria, the case
is referred to the county district attorney who may file a
petition for civil commitment.
Once a petition has been filed, a judge holds a probable cause
hearing; and if probable cause if found, the case proceeds to
a trial at which the prosecutor must prove to a jury beyond a
reasonable doubt that the offender meets the statutory
criteria. The state must prove "[1] a person who has been
convicted of a sexually violent offense against [at least one]
victim[] and [2] who has a diagnosed mental disorder that [3]
makes the person a danger to the health and safety of others
in that it is likely that he or she will engage in [predatory]
sexually violent criminal behavior." [Cooley v. Superior
Court (Martinez) (2002) 29 Cal.4th 228, 246.] If the
prosecutor meets this burden, the person is then be civilly
committed to a DSH facility for treatment.
The DSH must conduct a yearly examination of a SVP's mental
condition and submit an annual report to the court. This
annual review includes an examination by a qualified expert.
[WIC Section 6605(a).] In addition, the DSH has an obligation
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to seek judicial review any time it believes a person
committed as a SVP no longer meets the criteria, not just
annually. [WIC Section 6605(f).]
The SVPA was substantially amended by Proposition 83
("Jessica's Law") operative on November 7, 2006. Originally,
a SVP commitment was for two years; but now, under Jessica's
Law, a person committed as a SVP may be held for an
indeterminate term upon commitment or until it is shown the
defendant no longer poses a danger to others. [See People v.
McKee (2010) 47 Cal. 4th 1172, 1185-1187.] Jessica's Law also
amended the SVPA to make it more difficult for SVPs to
petition for less restrictive alternatives to commitment.
These changes have survived due process, ex post facto, and,
more recently, equal protection challenges. (See People v.
McKee, supra, 47 Cal. 4th 1172; and People v. McKee (2012) 207
Cal.App.4th 1325.]
3)Obtaining Release From Commitment : A person committed as a
SVP may petition the court for conditional release or
unconditional discharge after one year of commitment. The
petition can be filed with, or without, the concurrence of the
Director of DSH. The Director's concurrence or lack thereof
makes a difference in the process used.
A SVP can, with the concurrence of the Director of the DSH,
petition for unconditional discharge if the patient "no longer
meets the definition of a SVP," or for conditional release.
(WIC Section 6605.) If an evaluator determines that the
person no longer qualifies as an SVP or that conditional
release is in the person's best interest and conditions can be
imposed to adequately protect the community, but the Director
of DSH disagrees with the recommendation, the Director must
nevertheless authorize the petition. [People v. Landau (2011)
199 Cal.App.4th 31, 37-39.] When the petition is filed with
the concurrence of the DSH, the court must set the matter for
an order to show cause hearing. [WIC Section 6605(b).] If
probable cause is found, the patient thereafter has a right to
a jury trial and is entitled to relief unless the district
attorney proves "beyond a reasonable doubt that the committed
person's diagnosed mental disorder remains such that he or she
is a danger to the health and safety of others and is likely
to engage in sexually violent behavior if discharged." [WIC
Section 6605(d).]
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A committed person may also petition for conditional release or
unconditional discharge notwithstanding the lack of
recommendation or concurrence by the Director of the DSH. [WIC
Section 6608(a).] Upon receipt of this type of petition, the
court "shall endeavor whenever possible to review the petition
and determine if it is based upon frivolous grounds and, if
so, shall deny the petition without a hearing." [WIC Section
6608(a).]<1> If the petition is not found to be frivolous,
the court is required to hold a hearing. [People v. Smith
(2013) 216 Cal.App.4th 947.]
The SVPA does not define the term "frivolous." The courts have
applied the definition of "frivolous" found in Code of Civil
Procedure Section 128.5(b)(2): "totally and completely
without merit" or "for the sole purpose of harassing an
opposing party." [People v. Reynolds (2010) 181 Cal.App.4th
1402, 1411; see also People v. McKee, supra, 47 Cal.4th 1172;
People v. Collins (2003) 110 Cal.App.4th 340, 349.]
Additionally, in Reynolds, supra, 181 Cal.App.4th at p. 1407,
the court interpreted WIC Section 6608 to require the
petitioner to allege facts in the petition that will show he
or she is not likely to engage in sexually violent criminal
behavior due to a diagnosed mental disorder, without
supervision and treatment in the community, since that is the
relief requested.
Once the court sets the hearing on the petition, then the
petitioner is entitled to both the assistance of counsel, and
the appointment of an expert. (People v. McKee, supra, 47
Cal.4th 1172, 1193.) At the hearing, the person petitioning
for release has the burden of proof by a preponderance of the
evidence. [WIC Section 6608(i); People v. Rasmuson (2006) 145
---------------------------
<1> Recently, in People v. McCloud (2013) 213 Cal.App.4th 1076,
the Court of Appeal recognized that the provision in WIC Section
6608(a), allowing for dismissal of a frivolous petition for
release without a hearing, may violate the equal protection
clause. The petitioner's equal protection claim was based on
the fact that, "No other commitment scheme allows the judge to
deem the petition 'frivolous' and thereby deny the petitioner a
hearing." (Id. at p. 1087.) The court found there might well
be actual disparate treatment of similarly situated persons-and
if there was disparate treatment, the State might or might not
be justified in so distinguishing between persons. The court
remanded the case for further proceedings on the equal
protection claim. (Id. at p. 1088.)
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Cal.App.4th 1487, 1503.] If the petition is denied, the SVP
may not file a subsequent petition until one year from the
date of the denial. [WIC Section 6608(h).]
In People v. Smith, supra, 212 Cal.App.4th 1398, 1405, the court
observed that WIC Section 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 provisions of WIC Section 6605
only describe procedures for trial of the issue of whether the
patient should be unconditionally discharged.
Similarly, while WIC Section 6608 refers to petitions for
conditional release and to petitions for unconditional
discharge, the statute does not specify procedures the court
should use to resolve the latter.
4)Argument in Support : The Riverside County District Attorney
(a co-sponsor of this bill), writes, "Under the current
statutory language, it is difficult to determine the
procedures that should be used when an SVP seeks release. The
changes suggested by this bill will clarify how an SVP seeks
conditional and unconditional release and the procedures that
should be followed by the courts in considering these
requests.
"Additionally, Section 6608 is currently ambiguous when
discussing the unconditional release of an SVP. 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 a 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.) To address this
issue, Section 6608 should be amended to clarify that
unconditional discharge from SVP commitment pursuant to that
section may only be sought upon the completion of at least one
year of conditional release.
"These changes ensure that the most dangerous sex offenders will
remain in custody while those who no longer pose a risk to
society will have a suitable and well defined means to
petition for release."
5)Argument in Opposition : The California Attorneys for Criminal
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Justice (CACJ) argue, "This bill attempts to clarify
provisions used when a committed person petitions for
unconditional discharge after being labeled a SVP. CACJ does
not believe this bill clarifies the procedures for SVPs.
"The US and California Supreme courts have consistently held
that involuntary confinement for mental health treatment is a
severely restricts justice and constitutionally required due
process. CACJ stands vehemently against the prospect of
curtailing a SVPs ability to file a petition for conditional
release for an entire year after an initial appeal for
conditional release is denied by the court."
6)Related Legislation : AB 768 (Achadjian) prohibits a person
designated as a SVP from being conditionally released as a
transient or being released to housing consisting of a
recreational vehicle or other vehicle. AB 768 has not been
heard by this Committee.
7)Prior Legislation :
a) AB 421 (Smyth), of the 2011-12 Legislative Session, made
procedural changes in SVP commitment proceedings. AB 421
failed passage in this Committee.
b) SB 179 (Pavley), Chapter 359, Statutes of 2011, tolls
the parole period for any person subject to a SVP
proceeding upon a finding of probable cause through release
from dismissal of proceeding or release from confinement.
c) Proposition 83 ("Jessica's Law"), operative on November
7, 2006, and SB 1128 (Alquist), Chapter 337, Statutes of
2006, made numerous changes to sex offender and SVP law,
including making commitment terms indefinite.
REGISTERED SUPPORT / OPPOSITION :
Support
Riverside County District Attorney (Co-Sponsor)
San Bernardino County District Attorney (Co-Sponsor)
San Joaquin County District Attorney (Co-Sponsor)
California District Attorneys Association
Opposition
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California Attorneys for Criminal Justice
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744