BILL NUMBER: SB 507 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 30, 2015
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 would 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. 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. 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. 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.
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 6603 of the Welfare and Institutions Code is
amended to read:
6603. (a) A person subject to this article shall be entitled to a
trial by jury, to the assistance of counsel, to the right to retain
experts or professional persons to perform an examination on his or
her behalf, and to have access to all relevant medical and
psychological records and reports. In the case of a person who is
indigent, the court shall appoint counsel to assist him or her, and,
upon the person's request, assist the person in obtaining an expert
or professional person to perform an examination or participate in
the trial on the person's behalf. Any right that may exist under this
section to request DNA testing on prior cases shall be made in
conformity with Section 1405 of the Penal Code.
(b) The attorney petitioning for commitment under this article
shall have the right to demand that the trial be before a jury.
(c) (1) If the attorney petitioning for commitment under this
article determines that updated evaluations are necessary in order to
properly present the case for commitment, the attorney may request
the State Department of State Hospitals to perform updated
evaluations. 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 under this article may request
the State Department of State Hospitals to perform replacement
evaluations. When a request is made for updated or replacement
evaluations, the State Department of State Hospitals shall perform
the requested evaluations and forward them to the petitioning
attorney and to the counsel for the person subject to this article.
However, updated or replacement evaluations shall not be performed
except as necessary to update one or more of the original evaluations
or to replace the evaluation of an evaluator who is no longer
available to testify for the petitioner in court proceedings. These
updated or replacement evaluations shall include review of available
medical and psychological records, including treatment records,
consultation with current treating clinicians, and interviews of the
person being evaluated, either voluntarily or by court order. If an
updated or replacement evaluation results in a split opinion as to
whether the person subject to this article meets the criteria for
commitment, the State Department of State Hospitals shall conduct two
additional evaluations in accordance with subdivision (f) of Section
6601.
(2) For purposes of this subdivision, "no longer available to
testify for the petitioner in court proceedings" means that the
evaluator is no longer authorized by the Director of State Hospitals
to perform evaluations regarding sexually violent predators as a
result of any of the following:
(A) The evaluator has failed to adhere to the protocol of the
State Department of State Hospitals.
(B) The evaluator's license has been suspended or revoked.
(C) The evaluator is unavailable pursuant to Section 240 of the
Evidence Code.
(D) The independent professional or state employee who has served
as the evaluator has resigned or retired and has not entered into a
new contract to continue as an evaluator in the case, unless this
evaluator, in his or her most recent evaluation of the person subject
to this article, opined that the person subject to this article does
not meet the criteria for commitment.
(d) Nothing in this section shall prevent the defense from
presenting otherwise relevant and admissible evidence.
(e) If the person subject to this article or the petitioning
attorney does not demand a jury trial, the trial shall be before the
court without a jury.
(f) A unanimous verdict shall be required in any jury trial.
(g) The court shall notify the State Department of State Hospitals
of the outcome of the trial by forwarding to the department a copy
of the minute order of the court within 72 hours of the decision.
(h) Nothing in this section shall limit any legal or equitable
right that a person may have to request DNA testing.
(i) Nothing in subparagraph (D) of paragraph (2) of subdivision
(c) shall be construed to affect the authority of the State
Department of State Hospitals to conduct two additional evaluations
when an updated or replacement evaluation results in a split opinion.
(j) (1) Notwithstanding any other law
, the attorney petitioning for commitment and the counsel
for the person subject to this article shall have the same access to
records as an evaluator pursuant to paragraph (1) of subdivision (c),
and the court shall issue a subpoena or court order for those
records upon request. the evaluator performing an
updated evaluation shall include with the evaluation a statement
listing all records reviewed by the evaluator pursuant to subdivision
(c). The court shall issue a subpoena, upon the request of either
party, for a certified copy of these records. The records shall be
provided to the attorney petitioning for commitment and the counsel
for the person subject to this article. The attorneys may use
the records in proceedings under this article and shall not disclose
them for any other purpose. The records are confidential to
the extent otherwise provided by law.
(2) This subdivision does not affect any right of a party to
object to the introduction of evidence that is more prejudicial than
probative.
(3) This subdivision does not create any new rights or limitations
regarding the retention of an expert witness by either party or
access to records by an expert retained or sought to be retained by
either party. The attorney petitioning for commitment shall not
provide access to the records obtained under paragraph (1) to any
third party, including an expert retained or sought to be retained by
that attorney, without the consent of the court upon noticed motion.
(4) This subdivision does not affect any right of a party to seek
to obtain other records regarding the person subject to this article.
(5) Except as provided in paragraph (1), this subdivision does not
affect any right of a committed person to assert that records are
confidential under Section 5328 of this code or Section 1014 of the
Evidence Code.