BILL ANALYSIS Ó SB 295 Page A 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. SB 295 Page B 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 SB 295 Page C 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 SB 295 Page D 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 SB 295 Page E 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).] SB 295 Page F 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.) SB 295 Page G 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 SB 295 Page H 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 SB 295 Page I California Attorneys for Criminal Justice Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744