Amended in Senate April 2, 2013

Senate Bill No. 742

Introduced by Senator Nielsen

February 22, 2013

An act to begin delete amend Section 11340.3 of the Government Code, relating to state government. end delete begin insert add Section 645.5 to the Penal Code, and to amend Section 6601 of the Welfare and Institutions Code, relating to defendants, and declaring the urgency end insert begin insert thereof, to take effect immediately. end insert

LEGISLATIVE COUNSEL’S DIGEST

SB 742, as amended, Nielsen. begin delete Administrative Procedure Act: Office of Administrative Law: director. end delete begin insert Defendants. end insert

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Existing law, as amended by Proposition 83 of the November 7, 2006, statewide general election, requires every inmate who has been convicted of an offense that requires him or her to register as a sex offender or any attempt to commit any of those offenses and who is committed to prison and released on parole to be monitored by a global positioning system (GPS) for life. Proposition 83 permits the Legislature to amend its provisions, either by a 2⁄3 vote of the membership of each house, or by a majority vote of the membership of each house, if the amendments expand the scope of the application of the provisions of the proposition or increase the punishments or penalties provided in the proposition. Existing law permits, and with respect to certain sex offenders requires, the use of electronic monitoring by the department and by county probation departments to electronically monitor the whereabouts of individuals on parole and probation, respectively.

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This bill would provide that any person who willfully removes or disables an electronic monitoring or supervising device, including a GPS or other monitoring device, affixed to his or her person or the person of another, knowing that the device was affixed as part of a criminal sentence or juvenile court disposition, as a condition of parole or probation, or otherwise pursuant to law, is guilty of a public offense, punishable as specified. The bill would also provide for revocation of probation, parole, or postrelease community supervision, and would subject persons with a specified sex offense conviction who violate the section to be subject to lifetime GPS monitoring.

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By creating a new crime, this bill would impose a state-mandated local program.

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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.

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This bill would require the evaluation to be a face-to-face evaluation. The bill would require an agency having supervisory authority over an individual who has been convicted of a sexually violent offense to refer the individual to the State Department of State Hospitals for an evaluation pursuant to the law governing the civil commitment of sexually violent predators when the individual has been found, in an adjudicatory proceeding, to have knowingly removed or disabled, or to have knowingly permitted another to remove or disable, an electronic monitoring device affixed to his or her person pursuant to existing law. The bill would make additional technical changes.

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By imposing additional duties on county agencies, this bill would impose a state-mandated local program.

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The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

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With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

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This bill would declare that it is to take effect immediately as an urgency statute.

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The Administrative Procedure Act governs the procedures for the adoption, amendment, or repeal of regulations by state agencies and for the review of those regulatory actions by the Office of Administrative Law. The office is under the control of a director who is authorized to employ and fix the compensation of various employees.

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This bill would make a technical, nonsubstantive change to that provision.

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Vote:  begin delete majority end delete begin insert ²⁄₃ end insert . Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

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

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begin insert SECTION 1. end insert   

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begin insert Section 645.5 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

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begin insert 645.5. end insert   

(a) Any person who willfully and knowingly removes
or disables an electronic monitoring or supervising device,
including a global positioning system (GPS) or other monitoring
device, affixed to his or her person or the person of another,
knowing that the device was affixed as part of a criminal sentence
or juvenile court disposition, as a condition of parole or probation,
or otherwise pursuant to law, is guilty of a public offense,
punishable as follows:

(1) If the crime that triggered the requirement that the
monitoring device be affixed was a misdemeanor, the person is
guilty of a misdemeanor, punishable by imprisonment in a county
jail for up to one year, by a fine of up to one thousand dollars
($1,000), or by both that fine and imprisonment.

(2) If the crime that triggered the requirement that the
monitoring device be affixed was a felony, the person is guilty of
a felony, punishable by imprisonment in the state prison for 16
months, or two or three years.

(3) If the person was on probation, parole, or postrelease
community supervision, then the probation, parole, or postrelease
community supervision of that person may be revoked. No credit
toward completion of probation, parole, or postrelease community
supervision may be earned during the period that the monitoring
device was disabled or removed, and if the person is subject to the
monitoring device because of a conviction for a sex offense
described in Section 290, the person shall be subject to a
revocation period of up to one year, as determined by the authority
responsible for supervising the probation, parole, or postrelease
community supervision, without earning credits.

(b) A person with a current or prior sex offense conviction who
is returned to prison for a GPS device violation under this section
or a new felony conviction shall be subject to the lifetime GPS
device requirements applicable to sex offenders pursuant to Section
3004.

(c) Nothing in this section shall be construed to prevent
punishment pursuant to any other law that imposes a greater or
more severe punishment, including, but not limited to, Section 594.

(d) This section shall not apply to the removal or disabling of
a monitoring device by a physician, emergency medical services
technician, or by any other emergency response or medical
personnel when doing so is necessary during the course of medical
treatment of the person subject to the device. This section shall
also not apply where the removal or disabling of the device is
authorized or required by a court of law or by the law enforcement,
probation, or parole authority or other entity responsible for
placing the device upon the person or that has the authority and
responsibility to monitor the device.

(e) “Disable,” for purposes of this section, includes, but is not
limited to, a willful and knowing failure to recharge an electronic
monitoring or supervising device, including a GPS device, on more
than one occasion, or for more than ___ hours.

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begin insert SEC. 2. end insert   

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

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 begin delete Mental Health end delete begin insert State
Hospitals end insert . 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 begin delete Mental Health end delete begin insert State Hospitals end insert 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 begin delete Mental Health end delete
begin insert State Hospitals end insert 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 begin delete Mental Health end delete begin insert State Hospitals end insert 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 begin delete Mental Health end delete begin insert State Hospitals end insert 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.

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(m) (1) Whenever an individual has been convicted, as that
term is defined in subdivision (a) of Section 6600, of a sexually
violent offense, and the individual has been found, in an
adjudicatory proceeding, to have willfully and knowingly removed
or disabled, or to have knowingly permitted another to remove or
disable, an electronic monitoring or supervising device, including
a global positioning system (GPS) device, affixed to his or her
person, the agency having supervisory authority over the individual
shall refer the individual to the State Department of State Hospitals
for a full evaluation of whether the person meets the criteria in
Section 6600.

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(2) For the purpose of this subdivision, “disable” includes, but
is not limited to, a willful and knowing failure to recharge an
electronic monitoring or supervising device, including a GPS
device, on more than one occasion, or for more than ___ hours.

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(m)

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begin insert (n) end insert  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.

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begin insert SEC. 3. end insert   

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No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for certain
costs that may be incurred by a local agency or school district
because, in that regard, this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.

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However, if the Commission on State Mandates determines that
this act contains other costs mandated by the state, reimbursement
to local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.

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begin insert SEC. 4. end insert   

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This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:

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In order to ensure the safety of the public at the earliest possible
time, it is necessary that this act take effect immediately.

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SECTION 1.  

Section 11340.3 of the Government Code is
amended to read:

11340.3.  

The director may employ and fix the compensation,
in accordance with law, of professional assistants and clerical and
other employees as is deemed necessary for the effective conduct
of the work of the office.

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