BILL NUMBER: SB 742 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 2, 2013
INTRODUCED BY Senator Nielsen
FEBRUARY 22, 2013
An act to amend Section 11340.3 of the Government Code,
relating to state government. 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
thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 742, as amended, Nielsen. Administrative Procedure
Act: Office of Administrative Law: director.
Defendants.
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.
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.
By creating a new crime, this bill would impose a state-mandated
local program.
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 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.
By imposing additional duties on county agencies, this bill would
impose a state-mandated local program.
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.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
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.
This bill would declare that it is to take effect immediately as
an urgency statute.
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.
This bill would make a technical, nonsubstantive change to that
provision.
Vote: majority 2/3 . Appropriation:
no. Fiscal committee: no yes .
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 645.5 is added to the
Penal Code , to read:
645.5. (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.
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
Mental Health State Hospitals 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 Mental Health State Hospitals
for a full evaluation of whether the person meets the criteria
in Section 6600.
(c) The State Department of Mental Health
State Hospitals shall evaluate the person in accordance with a
standardized assessment protocol, developed and updated by the State
Department of Mental Health State Hospitals
, 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
in a face-to-face evaluation by two practicing
psychiatrists or psychologists, or one practicing psychiatrist and
one practicing psychologist, designated by the Director of
Mental Health State Hospitals . 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 State Hospitals 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 State Hospitals 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 State Hospitals
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 Mental Health
State Hospitals determines that the person is a sexually
violent predator as defined in this article, the Director of
Mental Health State Hospitals 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 Mental Health State Hospitals of its
decision regarding the filing of a petition for commitment within 15
days of making that decision.
(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.
(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.
(m)
(n) 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.
SEC. 3. 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.
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.
SEC. 4. 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:
In order to ensure the safety of the public at the earliest
possible time, it is necessary that this act take effect immediately.
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.