Senate Bill No. 709

Introduced by Senator Nielsen

February 22, 2013

An act to amend Section 2962 of the Penal Code, and to amend Section 6601 of the Welfare and Institutions Code, relating to inmates.

LEGISLATIVE COUNSEL’S DIGEST

SB 709, as introduced, Nielsen. Inmates: mental evaluations.

Existing law requires that as a condition of parole, a prisoner who has a severe mental disorder, as defined, shall be required to be treated by the State Department of State Hospitals, and the State Department of State Hospitals shall provide the necessary treatment. Existing law requires that, prior to release on parole, the person in charge of treating the prisoner and a practicing psychiatrist or psychologist from the State Department of State Hospitals have evaluated the prisoner at a facility of the Department of Corrections and Rehabilitation.

This bill would require the evaluation to be a face-to-face evaluation.

Existing law requires that whenever the Secretary of the Department of Corrections and Rehabilitation determines that an individual who is in custody under the jurisdiction of the department, and who is either serving a determinate prison sentence or whose parole has been revoked, may be a sexually violent predator, the secretary shall, at least 6 months prior to that individual’s scheduled date for release from prison, refer the person for evaluation to the State Department of State Hospitals. Existing law requires the State Department of State Hospitals to evaluate the person in accordance with a standardized assessment protocol, developed and updated by that department, to determine whether the person is a sexually violent predator.

This bill would require the evaluation to be a face-to-face evaluation. The bill would make additional technical changes.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 2962 of the Penal Code is amended to
read:

2962.  

As a condition of parole, a prisoner who meets the
following criteria shall be required to be treated by the State
Department of State Hospitals, and the State Department of State
Hospitals shall provide the necessary treatment:

(a) (1) The prisoner has a severe mental disorder that is not in
remission or cannot be kept in remission without treatment.

(2) The term “severe mental disorder” means an illness or
disease or condition that substantially impairs the person’s thought,
perception of reality, emotional process, or judgment; or which
grossly impairs behavior; or that demonstrates evidence of an acute
brain syndrome for which prompt remission, in the absence of
treatment, is unlikely. The term “severe mental disorder” as used
in this section does not include a personality or adjustment disorder,
epilepsy, mental retardation or other developmental disabilities,
or addiction to or abuse of intoxicating substances.

(3) The term “remission” means a finding that the overt signs
and symptoms of the severe mental disorder are controlled either
by psychotropic medication or psychosocial support. A person
“cannot be kept in remission without treatment” if during the year
prior to the question being before the Board of Parole Hearings or
a trial court, he or she has been in remission and he or she has been
physically violent, except in self-defense, or he or she has made
a serious threat of substantial physical harm upon the person of
another so as to cause the target of the threat to reasonably fear
for his or her safety or the safety of his or her immediate family,
or he or she has intentionally caused property damage, or he or
she has not voluntarily followed the treatment plan. In determining
if a person has voluntarily followed the treatment plan, the standard
shall be whether the person has acted as a reasonable person would
in following the treatment plan.

(b) The severe mental disorder was one of the causes of or was
an aggravating factor in the commission of a crime for which the
prisoner was sentenced to prison.

(c) The prisoner has been in treatment for the severe mental
disorder for 90 days or more within the year prior to the prisoner’s
parole or release.

(d) (1) Prior to release on parole, the person in charge of treating
the prisoner and a practicing psychiatrist or psychologist from the
State Department of State Hospitals have evaluated the prisoner
begin insert in a face-to-face evaluation end insert at a facility of the Department of
Corrections and Rehabilitation, and a chief psychiatrist of the
Department of Corrections and Rehabilitation has certified to the
Board of Parole Hearings that the prisoner has a severe mental
disorder, that the disorder is not in remission, or cannot be kept in
remission without treatment, that the severe mental disorder was
one of the causes or was an aggravating factor in the prisoner’s
criminal behavior, that the prisoner has been in treatment for the
severe mental disorder for 90 days or more within the year prior
to his or her parole release day, and that by reason of his or her
severe mental disorder the prisoner represents a substantial danger
of physical harm to others. For prisoners being treated by the State
Department of State Hospitals pursuant to Section 2684, the
certification shall be by a chief psychiatrist of the Department of
Corrections and Rehabilitation, and the evaluation shall be done
at a state hospital by the person at the state hospital in charge of
treating the prisoner and a practicing psychiatrist or psychologist
from the Department of Corrections and Rehabilitation.

(2) If the professionals doing the evaluation pursuant to
paragraph (1) do not concur that (A) the prisoner has a severe
mental disorder, (B) that the disorder is not in remission or cannot
be kept in remission without treatment, or (C) that the severe
mental disorder was a cause of, or aggravated, the prisoner’s
criminal behavior, and a chief psychiatrist has certified the prisoner
to the Board of Parole Hearings pursuant to this paragraph, then
the Board of Parole Hearings shall order a further examination by
two independent professionals, as provided for in Section 2978.

(3) If at least one of the independent professionals who evaluate
the prisoner pursuant to paragraph (2) concurs with the chief
psychiatrist’s certification of the issues described in paragraph (2),
this subdivision shall be applicable to the prisoner. The
professionals appointed pursuant to Section 2978 shall inform the
prisoner that the purpose of their examination is not treatment but
to determine if the prisoner meets certain criteria to be involuntarily
treated as a mentally disordered offender. It is not required that
the prisoner appreciate or understand that information.

(e) The crime referred to in subdivision (b) meets both of the
following criteria:

(1) The defendant received a determinate sentence pursuant to
Section 1170 for the crime.

(2) The crime is one of the following:

(A) Voluntary manslaughter.

(B) Mayhem.

(C) Kidnapping in violation of Section 207.

(D) Any robbery wherein it was charged and proved that the
defendant personally used a deadly or dangerous weapon, as
provided in subdivision (b) of Section 12022, in the commission
of that robbery.

(E) Carjacking, as defined in subdivision (a) of Section 215, if
it is charged and proved that the defendant personally used a deadly
or dangerous weapon, as provided in subdivision (b) of Section
12022, in the commission of the carjacking.

(F) Rape, as defined in paragraph (2) or (6) of subdivision (a)
of Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.

(G) Sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another
person.

(H) Oral copulation by force, violence, duress, menace, or fear
of immediate and unlawful bodily injury on the victim or another
person.

(I) Lewd acts on a child under the age of 14 years in violation
of Section 288.

(J) Continuous sexual abuse in violation of Section 288.5.

(K) The offense described in subdivision (a) of Section 289
where the act was accomplished against the victim’s will by force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person.

(L) Arson in violation of subdivision (a) of Section 451, or arson
in violation of any other provision of Section 451 or in violation
of Section 455 where the act posed a substantial danger of physical
harm to others.

(M) Any felony in which the defendant used a firearm which
use was charged and proved as provided in Section 12022.5,
12022.53, or 12022.55.

(N) A violation of Section 18745.

(O) Attempted murder.

(P) A crime not enumerated in subparagraphs (A) to (O),
inclusive, in which the prisoner used force or violence, or caused
serious bodily injury as defined in paragraph (4) of subdivision (f)
of Section 243.

(Q) A crime in which the perpetrator expressly or impliedly
threatened another with the use of force or violence likely to
produce substantial physical harm in such a manner that a
reasonable person would believe and expect that the force or
violence would be used. For purposes of this subparagraph,
substantial physical harm shall not require proof that the threatened
act was likely to cause great or serious bodily injury.

(f) As used in this chapter, “substantial danger of physical harm”
does not require proof of a recent overt act.

SEC. 2.  

Section 6601 of the Welfare and Institutions Code is
amended to read:

6601.  

(a) (1) Whenever the Secretary of the Department of
Corrections and Rehabilitation determines that an individual who
is in custody under the jurisdiction of the Department of
Corrections and Rehabilitation, and who is either serving a
determinate prison sentence or whose parole has been revoked,
may be a sexually violent predator, the secretary shall, at least six
months prior to that individual’s scheduled date for release from
prison, refer the person for evaluation in accordance with this
section. However, if the inmate was received by the department
with less than nine months of his or her sentence to serve, or if the
inmate’s release date is modified by judicial or administrative
action, the secretary may refer the person for evaluation in
accordance with this section at a date that is less than six months
prior to the inmate’s scheduled release date.

(2) A petition may be filed under this section if the individual
was in custody pursuant to his or her determinate prison term,
parole revocation term, or a hold placed pursuant to Section 6601.3,
at the time the petition is filed. A petition shall not be dismissed
on the basis of a later judicial or administrative determination that
the individual’s custody was unlawful, if the unlawful custody was
the result of a good faith mistake of fact or law. This paragraph
shall apply to any petition filed on or after January 1, 1996.

(b) The person shall be screened by the Department of
Corrections and Rehabilitation and the Board of Parole Hearings
based on whether the person has committed a sexually violent
predatory offense and on a review of the person’s social, criminal,
and institutional history. This screening shall be conducted in
accordance with a structured screening instrument developed and
updated by the State Department of begin delete Mental Health end delete begin insert State Hospitals end insert
in consultation with the Department of Corrections and
Rehabilitation. If as a result of this screening it is determined that
the person is likely to be a sexually violent predator, the
Department of Corrections and Rehabilitation shall refer the person
to the State Department of begin delete Mental Health end delete begin insert State Hospitals end insert for a full
evaluation of whether the person meets the criteria in Section 6600.

(c) The State Department of begin delete Mental Health end delete begin insert State Hospitals end insert shall
evaluate the person in accordance with a standardized assessment
protocol, developed and updated by the State Department of begin delete Mental
Health end delete begin insert State Hospitals end insert , to determine whether the person is a
sexually violent predator as defined in this article. The standardized
assessment protocol shall require assessment of diagnosable mental
disorders, as well as various factors known to be associated with
the risk of reoffense among sex offenders. Risk factors to be
considered shall include criminal and psychosexual history, type,
degree, and duration of sexual deviance, and severity of mental
disorder.

(d) Pursuant to subdivision (c), the person shall be evaluated begin insert in
a face-to-face evaluation end insert by two practicing psychiatrists or
psychologists, or one practicing psychiatrist and one practicing
psychologist, designated by the Director of Mental Health. If both
evaluators concur that the person has a diagnosed mental disorder
so that he or she is likely to engage in acts of sexual violence
without appropriate treatment and custody, the Director of Mental
Health shall forward a request for a petition for commitment under
Section 6602 to the county designated in subdivision (i). Copies
of the evaluation reports and any other supporting documents shall
be made available to the attorney designated by the county pursuant
to subdivision (i) who may file a petition for commitment.

(e) If one of the professionals performing the evaluation pursuant
to subdivision (d) does not concur that the person meets the criteria
specified in subdivision (d), but the other professional concludes
that the person meets those criteria, the Director of Mental Health
shall arrange for further examination of the person by two
independent professionals selected in accordance with subdivision
(g).

(f) If an examination by independent professionals pursuant to
subdivision (e) is conducted, a petition to request commitment
under this article shall only be filed if both independent
professionals who evaluate the person pursuant to subdivision (e)
concur that the person meets the criteria for commitment specified
in subdivision (d). The professionals selected to evaluate the person
pursuant to subdivision (g) shall inform the person that the purpose
of their examination is not treatment but to determine if the person
meets certain criteria to be involuntarily committed pursuant to
this article. It is not required that the person appreciate or
understand that information.

(g) Any independent professional who is designated by the
Secretary of the Department of Corrections and Rehabilitation or
the Director of Mental Health for purposes of this section shall not
be a state government employee, shall have at least five years of
experience in the diagnosis and treatment of mental disorders, and
shall include psychiatrists and licensed psychologists who have a
doctoral degree in psychology. The requirements set forth in this
section also shall apply to any professionals appointed by the court
to evaluate the person for purposes of any other proceedings under
this article.

(h) If the State Department of begin delete Mental Health end delete begin insert State Hospitals end insert
determines that the person is a sexually violent predator as defined
in this article, the Director of Mental Health shall forward a request
for a petition to be filed for commitment under this article to the
county designated in subdivision (i). Copies of the evaluation
reports and any other supporting documents shall be made available
to the attorney designated by the county pursuant to subdivision
(i) who may file a petition for commitment in the superior court.

(i) If the county’s designated counsel concurs with the
recommendation, a petition for commitment shall be filed in the
superior court of the county in which the person was convicted of
the offense for which he or she was committed to the jurisdiction
of the Department of Corrections and Rehabilitation. The petition
shall be filed, and the proceedings shall be handled, by either the
district attorney or the county counsel of that county. The county
board of supervisors shall designate either the district attorney or
the county counsel to assume responsibility for proceedings under
this article.

(j) The time limits set forth in this section shall not apply during
the first year that this article is operative.

(k) An order issued by a judge pursuant to Section 6601.5,
finding that the petition, on its face, supports a finding of probable
cause to believe that the individual named in the petition is likely
to engage in sexually violent predatory criminal behavior upon his
or her release, shall toll that person’s parole pursuant to paragraph
(4) of subdivision (a) of Section 3000 of the Penal Code, if that
individual is determined to be a sexually violent predator.

(l) Pursuant to subdivision (d), the attorney designated by the
county pursuant to subdivision (i) shall notify the State Department
of begin delete Mental Health end delete begin insert State Hospitals end insert of its decision regarding the filing
of a petition for commitment within 15 days of making that
decision.

(m) This section shall become operative on the date that the
director executes a declaration, which shall be provided to the
fiscal and policy committees of the Legislature, including the
Chairperson of the Joint Legislative Budget Committee, and the
Department of Finance, specifying that sufficient qualified state
employees have been hired to conduct the evaluations required
pursuant to subdivision (d), or January 1, 2013, whichever occurs
first.