Amended in Senate June 2, 2015

Amended in Senate April 30, 2015

Senate Bill No. 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, begin delete if one or more of the original evaluators is no longer available to testify for the petitioner in court proceedings, end delete begin insert if the attorney petitioning for commitment determines that updated evaluations are necessary in order to properly present the case for commitment, end insert the attorney begin delete petitioning for commitment end delete may request the department to perform begin delete replacement evaluations. These replacement evaluations end delete begin insert updated evaluations, which end insert 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 begin delete replacement end delete begin insert updated end insert evaluations to the petitioning attorney and to the counsel for the person who is the subject of the commitment hearing.

This bill would 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. begin insert The bill would authorize either party to move to quash the subpoena, in whole or in part, on the ground that a record or portion of a record is not likely to lead to the discovery of admissible evidence regarding whether the person is a sexually violent predator. 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. 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)  begin delete Nothing in this section shall end delete begin insert This section does not end insert 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)  begin delete Nothing in this section shall end delete begin insert This section does not end insert limit any
legal or equitable right that a person may have to request DNA
testing.

(i)  begin delete Nothing in subparagraph end delete begin insert Subparagraph end insert (D) of paragraph
(2) of subdivision (c) begin delete shall be construed to end delete begin insert does not end insert 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 begin delete law end delete begin insert law, end insert 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.

begin insert

(2) Either party may move to quash the subpoena, in whole or
in part, on the ground that a record or portion of a record is not
likely to lead to the discovery of admissible evidence regarding
whether the person subject to this article is a sexually violent
predator, as defined in subdivision (a) of Section 6600. If the
motion to quash is granted, in whole or in part, the record or
records shall retain any confidentiality that may apply under
Section 5328 of this code and Section 1014 of the Evidence Code.

end insert begin delete

(2)

end delete

begin insert (3) end insert  This subdivision does not affect any right of a party to object
to the introduction of evidence that is more prejudicial than
probative.

begin delete

(3)

end delete

begin insert (4) end insert  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.

begin delete

(4)

end delete

begin insert (5) end insert  This subdivision does not affect any right of a party to seek
to obtain other records regarding the person subject to this article.

begin delete

(5)

end delete

begin insert (6) end insert  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.