BILL ANALYSIS Ó
AB 1003
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Date of Hearing: April 28, 2015
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
1003 (Nazarian) - As Amended April 22, 2015
SUMMARY: Creates a Sexually Violent Predator (SVP) oversight
board comprised of members from the Department of State
Hospitals (DSH) and the criminal justice system to make
recommendation to the Governor and Legislature regarding the SVP
program. Specifically, this bill:
1)Requires the DSH, on or before January 30, 2016, to consult
with a committee consisting of one representative of the DSH,
California District Attorneys Association (CDAA), California
Public Defenders Association (CPDA), and the Los Angeles
District Attorney's Office (LADA). The committee members
shall select a member of the private defense bar, and a person
with experience as a SVP evaluator to make recommendations to
make possible changes to the SVP standardized assessment
protocol.
2)States that, on or before March 1, 2016, the DSH shall
initiate the regulatory process to update SVP standardized
assessment protocol, including a plan for formal supervisory
review of SVP evaluations and a checklist for reviewing
evaluations, as recommended in a March 2015 report of the
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California State Auditor (CSA). The regulations shall also
include requirements and procedures for training evaluators.
3)Creates an SVP oversight board to advise the Governor and the
Legislature regarding SVP's, and the oversight board shall be
comprised of seven members with one representative from each
of the following organizations: DSH, CDAA, CPDA, LADA, and
the California Judicial Commission on Judicial Performance.
4)Requires the five statutorily-designated members of the
oversight board to select a representative of the private
defense bar and a person with experience as a SVP evaluator to
serve on the oversight board.
5)Requires the oversight board to meet at least six times per
year.
6)States that on or before January 1, 2017, and on or before
January 1 in each subsequent year, the oversight board shall
make a report to the Governor and the Legislature making
recommendations regarding the SVP program, including, but not
limited to, evaluating SVP's confined in the state hospitals.
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.
(Welf. & Inst. Code, § 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." (Welf. & Inst. Code, § 6600, subd.
(a)(1).)
3)Permits a person committed as a SVP to be held for an
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indeterminate term upon commitment. (Welf. & Inst. Code, §
6604.1.)
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 whether an unconditional release is in the best
interest of the person and also what conditions can be imposed
to adequately protect the community. (Welf. & Inst. Code, §
6604.9.)
5)Allows a SVP to seek conditional release with the
authorization of the Director of State Hospitals 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. (Welf. & Inst.
Code, § 6607.)
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
concurrence by the Director of DSH. (Welf. & Inst. Code, §
6608, subd. (a).)
7)Provides that, if the court deems the conditional release
petition not frivolous, the court is to give notice of the
hearing date to the attorney designated to represent the
county of commitment, the retained or appointed attorney for
the committed person, and the Director of State Hospitals at
least 30 court days before the hearing date. (Welf. & Inst.
Code, § 6608, subd. (b).)
8)Requires the court to first obtain the written recommendation
of the director of the treatment facility before taking any
action on the petition for conditional release if the petition
is made without the consent of the director of the treatment
facility. (Welf. & Inst. Code, § 6608, subd. (c).)
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9)Provides that the court shall hold a hearing to determine
whether the person committed would be 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 due to his or her
diagnosed mental disorder if under supervision and treatment
in the community. Provides that the attorney designated the
county of commitment shall represent the state and have the
committed person evaluated by experts chosen by the state and
that the committed person shall have the right to the
appointment of experts, if he or she so requests. (Welf. &
Inst. Code, § 6608, subd. (e).)
10)Requires the court to order the committed person placed with
an appropriate forensic conditional release program operated
by the state for one year if the court at the hearing
determines that the committed person would not be a danger to
others due to his or her diagnosed mental disorder while under
supervision and treatment in the community. Requires a
substantial portion of the state-operated forensic conditional
release program to include outpatient supervision and
treatment. Provides that the court retains jurisdiction of the
person throughout the course of the program. (Welf. & Inst.
Code, § 6608, subd. (e).)
11)Provides that if the court denies the petition to place the
person in an appropriate forensic conditional release program,
the person may not file a new application until one year has
elapsed from the date of the denial. (Welf. & Inst. Code, §
6608, subd. (h)
12)Allows, after a minimum of one year on conditional release,
the committed person, with or without the recommendation or
concurrence of the Director of State Hospitals, to petition
the court for unconditional discharge, as specified. (Welf. &
Inst. Code, § 6608, subd. (k).)
FISCAL EFFECT: Unknown
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COMMENTS:
1)Author's Statement: According to the author, "AB 1003
establishes an oversight board that would implement interim
regulations for evaluating SVP's, until that time where a
special committee would make comprehensive recommendations to
the Legislature and the Governor.
"In March of 2015 the California State Auditor released a report
on California State Hospitals assessment protocols and
training. In its review of the State Hospitals' Sex Offender
Commitment program they found several the process in which
they evaluated sex offenders were flawed. This bill
establishes a process to address the concerns raised in the
report, as well as, other issues that may not have been
addressed."
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.
The DSH uses specified criteria to determine whether 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
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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 then can 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.
(Welf. & Inst. Code, § 6604.9.) In addition, DSH has an
obligation to seek judicial review any time it believes a
person committed as a SVP no longer meets the criteria, not
just annually. (Welf. & Inst. Code, § 6607.)
The SVPA was substantially amended by Proposition 83
("Jessica's Law"), which became 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
that the defendant no longer poses a danger to others. (See
People v. McKee (2010) 47 Cal.4th 1172, 1185-87.) 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. (Welf.
& Inst. Code, § 6608, subd. (a).) The petition can be filed
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with, or without, the concurrence of the Director of State
Hospitals. The Director's concurrence or lack thereof makes a
difference in the process used.
A SVP can, with the concurrence of the Director of State
Hospitals, petition for unconditional discharge if the patient
"no longer meets the definition of a SVP," or for conditional
release. (Welf. & Inst. Code, § 6604.9, subd. (d).) If an
evaluator determines that the person no longer qualifies as a
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 State Hospitals 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 orders a show-cause hearing.
(Welf. & Inst. Code, § 6604.9, subd. (f).) 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." (Welf. &
Inst. Code, § 6605.)
A committed person may also petition for conditional release or
unconditional discharge notwithstanding the lack of
recommendation or concurrence by the Director of State
Hospitals. (Welf. & Inst. Code, § 6608, subd. (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." (Welf. & Inst. Code, § 6608,
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subd. (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, subdivision (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 Welfare and Institutions Code
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. (Welf. & Inst. Code, § 6608, subd. (i); People v.
---------------------------
<1> Recently, in People v. McCloud (2013) 213 Cal.App.4th 1076,
the Court of Appeal recognized that the provision in Welfare and
Institutions Code section 6608, subdivision (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 "[n]o 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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Rasmuson (2006) 145 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. (Welf. & Inst. Code, §
6608, subd. (h).)
4)California State Auditor Report: In March of 2015 the
California State Auditor issued an audit report on the DSH's
Sex Offender Commitment Program (program). The report summary
stated, "The program targets a small but extremely dangerous
subset of sexually violent offenders (offenders) who present a
continuing threat to society because their diagnosed mental
disorders predispose them to engage in sexually violent
criminal behaviors. State Hospitals evaluates these offenders
to determine whether they meet criteria to be considered
sexually violent predators (SVPs) and whether courts should
consider committing such offenders to a state hospital.
"Our report concludes that State Hospitals' evaluations of
potential SVPs were inconsistent. Although state law requires
that evaluators consider a number of factors about offenders,
such as their criminal and psychosexual histories, we noted
instances in which evaluators did not consider all relevant
information. We noted that gaps in policies, supervision, and
training may have contributed to the inconsistent evaluations.
Specifically, State Hospitals' standardized assessment
protocol for how to perform evaluations. Further, State
Hospitals' headquarters lacks a process of supervisory review
of evaluators' work from a clinical perspective. We also noted
that State Hospitals has not consistently offered training to
its evaluators, and did not provide SVP evaluators with any
training between August 2012 and May 2014. Also, State
Hospitals could not demonstrate that its evaluators had
training on a specific type of instrument used when assessing
whether an individual would commit another sexual offense
until it began offering such training at the end of 2014.
"We also noted additional areas in which State Hospitals could
improve its evaluation process. Specifically, it has not
documented its efforts to verify that its evaluators met the
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experience portion of the minimum qualifications for their
positions. In addition, in March 2013, State Hospitals
developed a process for assigning and tracking the workload of
its evaluators and recently revised it in January 2015.
Although the revised process addresses some concerns about
workload assignments, it omits other elements and State
Hospitals has not established a formal process for
periodically reviewing its workload assignment process.
Finally, State Hospitals need to address its backlog of annual
evaluations of currently committed SVPs at Coalinga State
Hospital (Coalinga). When Coalinga fails to promptly perform
these evaluations, it is not fulfilling one of its critical
statutory obligations, leaving the State unable to report on
whether the SVPs continue to pose risks to the public and
whether unconditional release to a less restrictive
environment might be an appropriate alternative."
( https://www.auditor.ca.gov/pdfs/reports/2014-125.pdf .)
5)Related Legislation: AB 262 (Lackey) placed additional
residency restrictions on SVP's conditionally released in the
community on outpatient treatment. AB 262 failed passage in
this Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
None
Opposition
None
Analysis Prepared
by: Gregory Pagan / PUB. S. / (916) 319-3744
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