Amended in Senate April 30, 2015

Senate BillNo. 507


Introduced by Senator Pavley

February 26, 2015


An act to amend Section 6603 of the Welfare and Institutions Code, relating to sexually violent predators.

LEGISLATIVE COUNSEL’S DIGEST

SB 507, as amended, Pavley. Sexually violent predators.

Existing law provides for the civil commitment of criminal offenders who have been determined to be sexually violent predators for treatment in a secure state hospital facility. Under existing law, persons to be evaluated for civil commitment are evaluated by 2 practicing psychiatrists or psychologists designated by the Director of State Hospitals. If both evaluators concur that the person is likely to engage in acts of sexual violence without appropriate treatment and custody, the director is required to forward a request for a petition for commitment to the district attorney or county counsel, who may then file the petition with the court.

Under existing law, if one or more of the original evaluators is no longer available to testify for the petitioner in court proceedings, the attorney petitioning for commitment may request the department to perform replacement evaluations. These replacement evaluations include the review of available medical and psychological records, including treatment records, consultation with current treating clinicians, and interviews of the person being evaluated. Existing law requires that the department forward the replacement evaluations to the petitioning attorney and to the counsel for the person who is the subject of the commitment hearing.

This bill wouldbegin delete provide that the attorneys in the civil commitment proceeding have the same access to medical and psychological records as the evaluators performing a replacement evaluation, and would direct the court to issue a subpoena or court order for those records upon request.end deletebegin insert require the evaluator performing an updated evaluation to include a statement listing the medical and psychological records reviewed by the evaluator, and would direct the court to issue a subpoena, upon the request of either party to the civil commitment proceeding, for a certified copy of these records.end insert The bill would authorize the attorneys to use the records in the commitment proceeding, but would prohibit disclosure of the records for any other purpose.begin insert The bill would also prohibit the attorney petitioning for commitment from providing access to these records to any 3rd party, including an expert retained or sought to be retained by that attorney, without the consent of the court upon noticed motion.end insert

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

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

P2    1

SECTION 1.  

Section 6603 of the Welfare and Institutions Code
2 is amended to read:

3

6603.  

(a) A person subject to this article shall be entitled to a
4trial by jury, to the assistance of counsel, to the right to retain
5experts or professional persons to perform an examination on his
6or her behalf, and to have access to all relevant medical and
7psychological records and reports. In the case of a person who is
8indigent, the court shall appoint counsel to assist him or her, and,
9upon the person’s request, assist the person in obtaining an expert
10or professional person to perform an examination or participate in
11the trial on the person’s behalf. Any right that may exist under this
12section to request DNA testing on prior cases shall be made in
13conformity with Section 1405 of the Penal Code.

14(b) The attorney petitioning for commitment under this article
15shall have the right to demand that the trial be before a jury.

16(c) (1) If the attorney petitioning for commitment under this
17article determines that updated evaluations are necessary in order
18to properly present the case for commitment, the attorney may
19request the State Department of State Hospitals to perform updated
20evaluations. If one or more of the original evaluators is no longer
P3    1available to testify for the petitioner in court proceedings, the
2attorney petitioning for commitment under this article may request
3the State Department of State Hospitals to perform replacement
4evaluations. When a request is made for updated or replacement
5evaluations, the State Department of State Hospitals shall perform
6the requested evaluations and forward them to the petitioning
7attorney and to the counsel for the person subject to this article.
8However, updated or replacement evaluations shall not be
9performed except as necessary to update one or more of the original
10evaluations or to replace the evaluation of an evaluator who is no
11longer available to testify for the petitioner in court proceedings.
12These updated or replacement evaluations shall include review of
13available medical and psychological records, including treatment
14records, consultation with current treating clinicians, and interviews
15of the person being evaluated, either voluntarily or by court order.
16If an updated or replacement evaluation results in a split opinion
17as to whether the person subject to this article meets the criteria
18for commitment, the State Department of State Hospitals shall
19conduct two additional evaluations in accordance with subdivision
20(f) of Section 6601.

21(2) For purposes of this subdivision, “no longer available to
22testify for the petitioner in court proceedings” means that the
23evaluator is no longer authorized by the Director of State Hospitals
24to perform evaluations regarding sexually violent predators as a
25result of any of the following:

26(A) The evaluator has failed to adhere to the protocol of the
27State Department of State Hospitals.

28(B) The evaluator’s license has been suspended or revoked.

29(C) The evaluator is unavailable pursuant to Section 240 of the
30Evidence Code.

31(D) The independent professional or state employee who has
32served as the evaluator has resigned or retired and has not entered
33into a new contract to continue as an evaluator in the case, unless
34this evaluator, in his or her most recent evaluation of the person
35subject to this article, opined that the person subject to this article
36does not meet the criteria for commitment.

37(d) Nothing in this section shall prevent the defense from
38presenting otherwise relevant and admissible evidence.

P4    1(e) If the person subject to this article or the petitioning attorney
2does not demand a jury trial, the trial shall be before the court
3without a jury.

4(f) A unanimous verdict shall be required in any jury trial.

5(g) The court shall notify the State Department of State Hospitals
6of the outcome of the trial by forwarding to the department a copy
7of the minute order of the court within 72 hours of the decision.

8(h) Nothing in this section shall limit any legal or equitable right
9that a person may have to request DNA testing.

10(i) Nothing in subparagraph (D) of paragraph (2) of subdivision
11(c) shall be construed to affect the authority of the State Department
12of State Hospitals to conduct two additional evaluations when an
13updated or replacement evaluation results in a split opinion.

14(j) begin insert(1)end insertbegin insertend insert Notwithstanding any other lawbegin delete, the attorney petitioning
15for commitment and the counsel for the person subject to this
16article shall have the same access to records as an evaluator
17pursuant to paragraph (1) of subdivision (c), and the court shall
18issue a subpoena or court order for those records upon request.end delete
begin insert the
19evaluator performing an updated evaluation shall include with
20the evaluation a statement listing all records reviewed by the
21evaluator pursuant to subdivision (c). The court shall issue a
22subpoena, upon the request of either party, for a certified copy of
23these records. The records shall be provided to the attorney
24petitioning for commitment and the counsel for the person subject
25to this article.end insert
The attorneys may use the records in proceedings
26under this article and shall not disclose them for any other purpose.
27begin delete The records are confidential to the extent otherwise provided by
28law.end delete

begin insert

29(2) This subdivision does not affect any right of a party to object
30to the introduction of evidence that is more prejudicial than
31probative.

end insert
begin insert

32(3) This subdivision does not create any new rights or limitations
33regarding the retention of an expert witness by either party or
34access to records by an expert retained or sought to be retained
35by either party. The attorney petitioning for commitment shall not
36provide access to the records obtained under paragraph (1) to any
37third party, including an expert retained or sought to be retained
38by that attorney, without the consent of the court upon noticed
39motion.

end insert
begin insert

P5    1(4) This subdivision does not affect any right of a party to seek
2to obtain other records regarding the person subject to this article.

end insert
begin insert

3(5) Except as provided in paragraph (1), this subdivision does
4not affect any right of a committed person to assert that records
5are confidential under Section 5328 of this code or Section 1014
6of the Evidence Code.

end insert


O

    98