Amended in Assembly July 2, 2015

Amended in Senate June 2, 2015

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 the attorney petitioning for commitment determines that updated evaluations are necessary in order to properly present the case for commitment, the attorney may request the department to perform updated evaluations, which 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 updated 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 delete 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 delete 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 delete 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 delete

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
P3    1request the State Department of State Hospitals to perform updated
2evaluations. If one or more of the original evaluators is no longer
3available to testify for the petitioner in court proceedings, the
4attorney petitioning for commitment under this article may request
5the State Department of State Hospitals to perform replacement
6evaluations. When a request is made for updated or replacement
7evaluations, the State Department of State Hospitals shall perform
8the requested evaluations and forward them to the petitioning
9attorney and to the counsel for the person subject to this article.
10However, updated or replacement evaluations shall not be
11performed except as necessary to update one or more of the original
12evaluations or to replace the evaluation of an evaluator who is no
13longer available to testify for the petitioner in court proceedings.
14These updated or replacement evaluations shall include review of
15available medical and psychological records, including treatment
16records, consultation with current treating clinicians, and interviews
17of the person being evaluated, either voluntarily or by court order.
18If an updated or replacement evaluation results in a split opinion
19as to whether the person subject to this article meets the criteria
20for commitment, the State Department of State Hospitals shall
21conduct two additional evaluations in accordance with subdivision
22(f) of Section 6601.

23(2) For purposes of this subdivision, “no longer available to
24testify for the petitioner in court proceedings” means that the
25evaluator is no longer authorized by the Director of State Hospitals
26to perform evaluations regarding sexually violent predators as a
27result of any of the following:

28(A) The evaluator has failed to adhere to the protocol of the
29State Department of State Hospitals.

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

31(C) The evaluator is unavailable pursuant to Section 240 of the
32Evidence Code.

33(D) The independent professional or state employee who has
34served as the evaluator has resigned or retired and has not entered
35into a new contract to continue as an evaluator in the case, unless
36this evaluator, in his or her most recent evaluation of the person
37subject to this article, opined that the person subject to this article
38does not meet the criteria for commitment.

39(d) This section does not prevent the defense from presenting
40otherwise 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) This section does not limit any legal or equitable right that
9a person may have to request DNA testing.

10(i) Subparagraph (D) of paragraph (2) of subdivision (c) does
11not affect the authority of the State Department of State Hospitals
12to conduct two additional evaluations when an updated or
13replacement evaluation results in a split opinion.

14(j) (1) Notwithstanding any other law, the evaluator performing
15an updated evaluation shall include with the evaluation a statement
16listing all records reviewed by the evaluator pursuant to subdivision
17(c). The court shall issue a subpoena, upon the request of either
18party, for a certified copy of these records. The records shall be
19provided to the attorney petitioning for commitment and the
20counsel for the person subject to this article. The attorneys may
21use the records in proceedings under this article and shall not
22disclose them for any other purpose.

23(2) begin deleteEither party may move to quash the subpoena, in whole or
24in part, on the ground that a record or portion of a record is not
25likely to lead to the discovery of admissible evidence regarding end delete

26begin insertThis subdivision does not affect the right of a party to object to
27the introduction at trial of all or a portion of a record subpoenaed
28under paragraph (1) on the ground that it is more prejudicial than
29probative pursuant to Section 352 of the Evidence Code or that it
30is not material to the issue of end insert
whether the person subject to this
31article is a sexually violent predator, as defined in subdivision (a)
32of Section 6600begin insert, or to any other issue to be decided by the courtend insert.
33If thebegin delete motion to quashend deletebegin insert reliefend insert is granted, in whole or in part, the
34record or records shall retain any confidentiality that may apply
35under Section 5328 of this code and Section 1014 of the Evidence
36Code.

begin delete

37(3) This subdivision does not affect any right of a party to object
38to the introduction of evidence that is more prejudicial than
39probative.

P5    1(4) This subdivision does not create any new rights or limitations
2regarding the retention of an expert witness by either party or
3access to records by an expert retained or sought to be retained by
4either party. The attorney petitioning for commitment shall not
5provide access to the records obtained under paragraph (1) to any
6third party, including an expert retained or sought to be retained
7by that attorney, without the consent of the court upon noticed
8motion.

9(5)

end delete

10begin insert(3)end insert This subdivision does not affect any right of a party to seek
11to obtain other records regarding the person subject to this article.

begin delete

12(6)

end delete

13begin insert(4)end insert Except as provided in paragraph (1), this subdivision does
14not affect any right of a committed person to assert that records
15are confidential under Section 5328 of this code or Section 1014
16of the Evidence Code.

17begin insert

begin insertSEC. 2.end insert  

end insert

begin insertNothing in this act is intended to affect the
18determination by the Supreme Court of California, in People v.
19Superior Court (Smith) (Docket No. S225562), whether an expert
20retained by the district attorney in a proceeding under the Sexually
21Violent Predator Act (Article 4 (commencing with Section 6600)
22of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions
23Code) is entitled to review otherwise confidential treatment
24information under Section 5328 of the Welfare and Institutions
25Code.end insert



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