BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 507        Hearing Date:    April 28, 2015    
          
           ----------------------------------------------------------------- 
          |Author:    |Pavley                                               |
          |-----------+-----------------------------------------------------|
          |Version:   |February 26, 2015                                    |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Urgency:   |No                     |Fiscal:    |Yes              |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Consultant:|JM                                                   |
          |           |                                                     |
           ----------------------------------------------------------------- 


                        Subject:  Sexually Violent Predators



          HISTORY

          Source:   Los Angeles County District Attorney

          Prior Legislation:AB 1607 (Fox) - Ch. 877, Stats. 2014
                         SB 295 (Emmerson) - Ch. 182, Stats. 2013
                         SB 760 (Alquist) - Ch. 790, Stats. 2012
                         Proposition 83, November 2006 General Election
                         SB 1128 (Alquist) - Ch. 337, Stats. 2006
                         AB 893 (Horton) - Ch. 162, Stats. 2005
                         AB 2450 (Canciamilla) - Ch. 425, Stats. 2004
                         AB 493 (Salinas) - Ch. 222, Stats. 2004
                         SB 659 (Correa) - Ch. 248, Stats. 2001
                         AB 1142 (Runner) - Ch. 323, Stats. 2001
                         SB 2018 (Schiff) - Ch. 420, Stats. 2000
                         SB 451 (Schiff) - Ch. 41, Stats. 2000
                         AB 2849 (Havice) - Ch. 643, Stats. 2000
                         SB 746 (Schiff) - Ch. 995, Stats. 1999
                         SB 11 (Schiff) - Ch. 136, Stats. 1999
                         SB 1976 (Mountjoy) - Ch. 961, Stats. 1998
                         AB 888 (Rogan) - Ch. 763, Stats. 1995
                         SB 1143 (Mountjoy) - Ch. 764, Stats. 1995


          Support:  Crime Victims United of California; California  








          SB 507  (Pavley )                                         PageB  
          of?
          
          District Attorneys Association

          Opposition:American Civil Liberties Union; California Public  
          Defenders Association

                                                


          PURPOSE

          The purpose of this bill is to provide that the prosecutor or  
          county attorney petitioning for commitment of a person alleged  
          to be a sexually violent predator and the attorney for the  
          person shall have the same access to records as the expert  
          evaluators, and to prohibit any other use of the otherwise  
          confidential records. 

          



          COMMENTS

          Existing law provides for the civil commitment for psychiatric  
          and psychological treatment of a prison inmate found to be a  
          sexually violent predator (SVP) after the person has served his  
          or her prison commitment.  (Welf. & Inst. Code, § 6600, et seq.)

          Existing law defines an SVP 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).)

          Existing law provides that where the Department of Corrections  
          and Rehabilitation determines that an inmate fits the criteria  
          for evaluation as an SVP, the inmate shall be referred for  
          evaluation to the Department of State Hospitals (DSH).  (Welf. &  
          Inst. Code § 6601, subd. (b).)

          Existing law provides that the inmate "shall be evaluated by two  
          practicing psychiatrists or psychologists, or one practicing  
          psychiatrist and one practicing psychologist, designated by the  









          SB 507  (Pavley )                                         PageC  
          of?
          
          Director of the DSH."  If both evaluators concur that the person  
          meets the criteria for SVP commitment, DSH shall request a  
          district attorney or county counsel<1> in the county of  
          commitment to prison to file a commitment petition.  (Welf. &  
          Inst. Code § 6601, subd. (d).)

          Existing law provides that if the evaluators designated by DSH  
          disagree, additional, independent evaluators are appointed.  The  
          second pair of evaluators must agree that the person meets the  
          requirement for SVP commitment or the case cannot proceed.   
          (Welf. & Inst. Code § 6601, subd. (c)-(e).)

          Existing law provides that if DSH requests the district attorney  
          to petition for commitment, the prosecutor shall have access to  
          "copies of the evaluation reports and any other supporting  
          documents" considered by the evaluators. (Welf. & Inst. Code §  
          6601, subd. (d).)

          Existing law provides for a hearing procedure to determine  
          whether there is probable cause to believe that a person who is  
          the subject of a petition for civil commitment as an SVP is  
          likely to engage in sexually violent predatory criminal behavior  
          upon his or her release from prison.  (Welf.  Inst. Code §  
          6602.)

          Existing law provides that a person committed as a SVP shall be  
          held for an indeterminate term upon commitment.  (Welf. & Inst.  
          Code, § 6604.1.)

          Existing law requires a jury trial at the request of either  
          party with a determination beyond a reasonable doubt that the  
          person is an SVP.  (Welf. & Inst. Code § 6603.)



          Existing law grants an alleged SVP "access to all and to have  
          access to all relevant medical and psychological records and  
          reports."  (Welf. & Inst. Code, § 6603, subd. (a)

          Existing law provides that if the attorney petitioning for  
          ---------------------------

          <1> The counsel for the state is designated by the board of  
          supervisors and is typically the district attorney.  (Welf. and  
          Inst. Code § 6601, subd. (f).)








          SB 507  (Pavley )                                         PageD  
          of?
          
          commitment of an SVP determines that updated evaluations are  
          necessary in order to properly present the case for commitment,  
          the attorney may request the Department of Mental Health (now  
          denominated the Department of State Hospitals - DSH)  to perform  
          updated evaluations.

                 If one or more of the original evaluators is no longer  
               available to testify for the prosecution in court  
               proceedings, the prosecutor may request the DSH to perform  
               replacement evaluations.

                 DSH shall perform the requested evaluations and forward  
               them to the prosecutor and counsel for the alleged SVP.

                 Updated or replacement evaluations shall be ordered only  
               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.

                 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 alleged SVP.

                 If an updated or replacement evaluation results in a  
               split opinion as to whether the alleged SVP meets the  
               criteria for commitment, DSH shall conduct two additional  
               evaluations, as specified.  (Welf. & Inst. Code § 6603,  
               subd. (c)(1).)

          Existing law provides that if the second pair of experts  
          performing the updated evaluations conclude that the person is  
          not an SVP, or if there is a split of opinion, the case shall  
          proceed on the basis of the original evaluations concluding or  
          finding that the person is an SVP.  (Reilly v. Superior Court (  
          2013) 57 Cal.4th 641.)

          Existing law defines "no longer able to testify for the  
          petitioner in court proceedings" as the evaluator is no longer  
          authorized by DSH to perform evaluations of SVPs as a result of  
          any of the following:

               The evaluator has failed to adhere to the protocol of the  









          SB 507  (Pavley )                                         PageE  
          of?
          
              DSH;

               The evaluator's license has been suspended or revoked; 

               The evaluator is legally unavailable, as specified; or  

               The evaluator has retired or not entered into a new  
              contract with to continue as an evaluator.  (Welf. & Inst.  
              Code § 6603, subd. (c)(1)-(2).)

          Existing law provides that a new evaluator shall not be  
          appointed if the resigned or retired evaluator has opined that  
          the individual named in the petition has not met the criteria  
          for commitment, as specified.  (Welf. & Inst. Code § 6603, subd.  
          (c)(1).)

          Existing law requires that an SVP patient have an annual  
          examination on his mental condition.  The report on the  
          examination shall include consideration of whether or not  
          conditional release to a less restrictive alternative or an  
          unconditional release is in the SVP patient's best interest and  
          what conditions would adequately protect the community.  (Welf.  
          & Inst. Code, § 6604.9.)

          Existing law provides that if DSH determines that an SVP  
          patient's condition has so changed that he or she no longer  
          meets the SVP criteria, or that he can be safely and  
          conditionally released under supervision, the SVP patient can  
          file a petition for unconditional release or a petition for  
          conditional release.  (Welf. & Inst. Code, § 6604.9.)

          Existing law provides that upon receipt of a petition for  
          unconditional release, the court shall set a hearing to  
          determine if there is probable cause that the SVP patient "has  
          so changed that he or she is not a danger to the health and  
          safety of others and is not likely to engage in sexually violent  
          criminal behavior.  If the court finds probable to support such  
          a finding, the matter shall be set for a jury trial as though it  
          were an original petition for commitment.  (Welf. & Inst. Code,  
          §§ 6604.9 and 6605.)

          Existing law provides that if DSH, independent of the annual  
          review and report of an SVP's mental condition, that the SVP  
          patient can be safely and conditionally released under  









          SB 507  (Pavley )                                         PageF  
          of?
          
          supervision, the court shall forward a report and recommendation  
          for conditional release to the prosecutor and the attorney for  
          the SVP patient.  (Welf. & Inst. Code, § 6607.)

          Existing law provides that if DSH does not concur that an SVP  
          can be safely and conditionally released under supervision, the  
          SVP can petition for conditional release or an unconditional  
          discharge any time after one year of commitment.  (Welf. & Inst.  
          Code § 6608, subd. (a).)

          Existing law provides that, if the court finds the conditional  
          release petition is not frivolous, the court shall give notice  
          of the hearing date to the attorney designated to represent the  
          county of commitment, the 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).)

          Existing law provides that where DSH in the annual report on the  
          mental status of an SVP patient finds that the conditional  
          discharge would be in the best interests of the patient under  
          conditions that would protect the public, the following shall:

                 The state shall have the burden of proof by a  
               preponderance of the evidence that the SVP   would be  
               likely to commit sexually violent offenses if conditionally  
               released.

                 If the petition for conditional release is denied by  
               court, the SVP may not file another petition for  
               conditional release for one year.  (Welf. & Inst. Code §  
               6608, subd. (i).)

          Existing law provides that if in the annual report DSH does not  
          find that conditional discharge is appropriate, the SVP patient  
          shall have the burden of proof by a preponderance of the  
          evidence at the hearing.  (Welf. & Inst. Code § 6608, subd.  
          (i).)

          Existing law 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  
          is made without the consent of the director of the treatment  
          facility.  (Welf. & Inst. Code, § 6608, subd. (c).)










          SB 507  (Pavley )                                         PageG  
          of?
          
          Existing law 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.

          Existing law 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).)

          Existing law requires the court to order the committed person  
          placed with an appropriate forensic conditional release program  
          (CONREP) 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. 

          Existing law provides that a substantial portion of SVP CONREP  
          shall include outpatient supervision and treatment.  The court  
          shall retain jurisdiction of the person throughout the course of  
          the program.  (Welf. & Inst. Code § 6608, subd. (e).)

          Existing law 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)

          Existing law 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. If the court finds probable cause that the person is  
          no longer an SVP, the court shall set the matter for jury trial.  
           The state shall bear the burden to prove beyond a reasonable  
          doubt that the person remains an SVP.  (Welf. & Inst. Code §§  
          6605, subds. (a)-(b) and 6608, subd. (k).)

          Existing law provides that a person petitioning for conditional  
          release is entitled to assistance of counsel in the conditional  









          SB 507  (Pavley )                                         PageH  
          of?
          
          release and county of domicile hearings.  (Welf. & Inst. Code §  
          6608, subd. (a.))

          Existing law provides that the procedure for a conditional  
          release hearing in a case in which the county of domicile has  
          not yet been determined by the court, proceed as follows:

                 The court, upon deeming that a conditional release  
               petition is not frivolous, shall provide notice to the  
               attorney for the committed person, the designated attorney  
               for the county of commitment, and the Director of State  
               Hospitals of its intent to set a conditional release  
               hearing, and requires these entities to notify the court  
               within 30 court days of receiving the notice of intent if  
               it is alleged that a county other than the county of  
               commitment is the domicile county.

                 The court shall deem the county of commitment as the  
               county of domicile and set a date for the conditional  
               release hearing, with at least 30 court days' notice, as  
               specified, if no county, other than the county of  
               commitment, is alleged to be the county of domicile.

                 The court shall, after giving 30-days' notice, hold a  
               hearing to determine the county of domicile if any other  
               county, other than the county of commitment, is alleged to  
               be the county of domicile.  Allows the designated attorney  
               for any alleged county of domicile, the attorney for the  
               county of commitment, the attorney for the petitioner, and  
               the Director of State Hospitals to file and serve  
               declarations, documentary evidence, and other pleadings,  
               specific to the issue of domicile only, at least 10 court  
               days prior to the hearing.  Allows the court, in its  
               discretion, to decide the issue of domicile based upon the  
               pleadings alone or permit such additional argument and  
               testimony as is in the interest of justice.

                 The court, after determining county of domicile, shall  
               set a date for a conditional release hearing and give  
               notice of the hearing, as specified, including to the  
               designated attorney for the county of domicile at least 30  
               court days before the date of the hearing.

                 The designated attorney of the domicile county has the  









          SB 507  (Pavley )                                         PageI  
          of?
          
               right to represent the state at the conditional release  
               hearing, and to provide notice to parties, as specified, if  
               he or she elects to do so.  The designated attorney from  
               each of the county commitment and domicile may mutually  
               agree that the attorney for the county of domicile will  
               represent the state in the conditional release hearing.   
               The attorneys from each county should cooperate.

                 The court's determination of a county of domicile is  
               final and applies to future proceedings relative to the  
               commitment or release of a SVP.  (Welf. & Inst. Code §§  
               6608, subd. (b). 6608.5.)

          Existing law provides that a conditional release hearing in a  
          case in which the county of domicile has been determined by the  
          court, shall proceed as follows:

                 The court, upon deeming that a conditional release  
               petition is not frivolous, to provide notice to the  
               attorney for the committed person, the designated attorney  
               for the county of commitment, the attorney for the county  
               of domicile and the Director of State Hospitals of the date  
               of the conditional release hearing at least 30 days prior  
               to the hearing.

                 Provides that representation of the state at the  
               conditional release shall be the attorney for the county of  
               commitment unless the attorney for the county of domicile  
               has been deemed to represent the state.  (Welf. & Inst.  
               Code § 6608, subd. (c.).)

          Existing law provides, if a committed person has been  
          conditionally released by a court to a county other than the  
          county of domicile - the county of placement - and the  
          jurisdiction of the person has been transferred to that county,  
          the notice required for a subsequent conditional release hearing  
          is to be given to the designated attorney of the county of  
          placement, who will represent the state in any further  
          proceedings.  (Welf. & Inst. Code § 6608, subd. (d).)

          Existing law provides that if the committed person has been  
          placed on conditional release in a county other than the county  
          of commitment, jurisdiction of the person shall, upon the  
          request of the designated attorney of the county of placement,  









          SB 507  (Pavley )                                         PageJ  
          of?
          
          be transferred to that county.  (Welf. & Inst. Code § 6608.5,  
          subd. (g).)

          This bill provides that where updated or replacement evaluations  
          have been prepared, the attorney petitioning for commitment and  
          the SVP patient's counsel "shall have the same access to records  
          as an [expert psychologist or psychiatrist] evaluator."  The  
          court shall issue a subpoena or court order for those records  
          upon request.  The attorneys may only use the records in  
          proceedings under this article and shall not be disclose them  
          for any other purpose.  The records are confidential to the  
          extent otherwise provided by law.

          This bill does not limit the access of the prosecutor and  
          counsel for an SVP patient or alleged SVP to records relied upon  
          by the evaluators.  




                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  









          SB 507  (Pavley )                                         PageK  
          of?
          
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
                                                                          or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.





          
















          SB 507  (Pavley )                                         PageL  
          of?
          
          COMMENTS

          1.Need for This Bill

          According to the author:

               In 1996, the Legislature created the Sex Offender  
               Commitment Program to target a small, but extremely  
               dangerous subset of "sexually violent predators"  
               (SVPs) who present a continuing threat to society  
               because their mental disorders predispose them to  
               engage in sexually violent behavior.  Specifically, an  
               SVP is a person who was previously convicted of a  
               sexually violent offense and committed to prison for  
               that or another offense.  Prior to release from  
               prison, experts from the Department of State Hospitals  
               evaluate the inmate to determine if he is likely,  
               because of a mental disorder, to commit a sexually  
               violent offense if released.  The person is then  
               entitled to a trial in which the prosecutor must  
               establish beyond a reasonable doubt that the experts'  
               opinions are correct.  If the jury or court agrees,  
               the person is committed to a state hospital as an SVP.

               Despite the critical role DSH evaluations play in the  
               SVP commitment process, as the California State  
               Auditor cited in its March 2015 report, the California  
               Department of State Hospitals "has not ensured that it  
               conducts these evaluations in a consistent manner" and  
               have noted "instances in which evaluators did not  
               demonstrate that they considered all relevant  
               information."  

               The court in Albertson v. Superior Court (2001) 25  
               Cal. 4th 796, held that Welfare and Institutions Code  
               (WIC) Section 6603 grants express authority for  
               updated expert evaluations and clarified an exception  
               to the general rule of confidentiality of treatment  
               records that allows the prosecutor "access to  
               treatment record information, insofar as that  
               information is contained in an updated evaluation."   
               Some trial courts have interpreted this language to  
               grant the DA access only to treatment information and  
               not to the records themselves.  Section 6603 states  









          SB 507  (Pavley )                                         PageM  
          of?
          
               that the updated evaluations shall include a review of  
               medical and mental health records.  It does not  
               explicitly grant prosecutor's access to the records,  
               nor did it explicitly deny or limit access.  The  
               Albertson court noted that "in a SVPA proceeding, a  
               district attorney may obtain, through updated mental  
               evaluations otherwise confidential information  
               concerning an alleged SVP's treatment."  Whether the  
               DA is granted direct access to the records, or only  
               allowed to access records relied upon by the  
               evaluators, depends upon each judge's reading of  
               Albertson. As a result, the issue is repeatedly  
               litigated and the results vary throughout California.   


               In Seaton v. Mayberg (2010) 610 Fed.3rd 530, 539, the  
               U.S. Ninth Circuit court held that  sexually violent  
               predator evaluations fall within a number of  
               long-established exceptions to the confidentiality of  
               medical communication.  These include cases of  
               restraint due to insanity, contagious diseases, abuse  
               of children and gunshot wounds.  In People v.  
               Martinez, the 4th District Court of Appeal held that  
               it is not a violation of the California right to  
               privacy (to provide copies of mental health treatment  
               records to the prosecutor in an SVP case.  (People v.  
               Martinez (1994) 88 Cal App 4th 465.

               Some of California's most violent sexual predators can  
               be released back into society if complete information  
               is not available to prosecutors and defense lawyers at  
               the time the predator's cases are being reviewed.   
               This bill is needed to help ensure such mistakes are  
               prevented in the future, providing more peace of mind  
               to already traumatized victims, their families and the  
               public at large.  

               According to the National Intimate Partners and Sexual  
               Violence Survey, conducted by the Centers for Disease  
               Control and Prevention, there are an estimated two  
               million female victims of rape in California, and  
               estimated 8.5 million survivors of sexual violence,  
               other than rape, in the United States. 










          SB 507  (Pavley )                                         PageN  
          of?
          
               Twenty others states and the federal government allow  
               involuntary civil commitment of sexually violent  
               predators.  California is the only state that does not  
               have a specific legislative provision granting  
               prosecutors access to mental health and medical  
               records for the purpose of carrying out sexually  
               violent predator commitment law.   

          2.  SVP Law Generally

          The Sexually Violent Predator Act (SVPA) establishes a civil  
          commitment scheme for sex offenders who are about to be released  
          from prison.  The DSH uses specified criteria to determine  
          whether an individual qualifies for treatment as a SVP.  A  
          person may be deemed a SVP if:  (a) the person has committed  
          specified sex offenses against one or more victims; (b) he has a  
          diagnosable mental disorder that makes him<2> 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 is found, the case proceeds to 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  


          ---------------------------

          <2> Virtually all SVPs have been men.








          SB 507  (Pavley )                                         PageO  
          of?
          
          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, 1185-1187.)  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.)  The standards and  
          procedures for conditional release proceedings were changed by  
          SB 295 (Emmerson) Ch. 182, Stats. 2013.

          3.  Extent of Confidentiality of Psychotherapy Treatment Records  
            of Persons Committed as SVPs and Alleged SVPs  

          a.Privacy Rights Generally and the Psychotherapist-Patient  
            Privilege

          The California Constitution includes an explicit right to  
          privacy.  (Art. I, § 1.)  The "penumbras" of specific rights in  
          the United States Constitution include a right to privacy for  
          matters relating to family and procreation.  (Griswold v.  
          Connecticut ( 1965) 381 US. 479, 481-486; Roe v. Wade (1973) 410  
          U.S. 113.)  The United States Supreme Court has not clearly  
          described a more general right to privacy, except as is created  
          by the Fourth Amendment right to be free from unreasonable  
          searches and seizures.  (People v. Gonzales (2013) 56 Cal.4th  
          353, 370-372.)

          The California Evidence Code includes a psychotherapist-patient  
          confidentiality privilege.   (Evid. Code § 1014.)  The patient  
          is the holder of the privilege and the privilege is  
          substantially broader than the doctor-patient privilege.   
          (People v. Gonzales, supra, 46 Cal.4th, at p.384.)  The  
          privilege applies apart from any privacy rights a person may  









          SB 507  (Pavley )                                         PageP  
          of?
          
          have in medical records generally.   

          b.Involuntary Forensic Mental Health Treatment

          The SVP law and program is one of a number of "forensic"  
          involuntary commitment categories in California.  Forensic  
          patients are involuntarily committed to DSH from the criminal  
          justice system for treatment.  Forensic patients include  
          mentally disordered offenders (MDO), persons found not guilty by  
          reason of insanity (NGI) and defendants who are incompetent to  
          stand trial (IST). Forensic patients comprise over 90% of DSH  
          patients.  DSH also treats is true civil commitment patients  
          pursuant to the Lanterman-Petris-Short (LPS) Act.  An LPS  
          patient is a person with a mental illness who is either gravely  
          disabled and cannot care for himself or herself, or is a danger  
          to self or others.  (Welf. & Inst. Code §§ 5000-5550.)

          As described above, an SVP is involuntarily committed for mental  
          health treatment because he has a mental disorder that makes it  
          likely that he will engage in sexually violent and predatory sex  
          crimes if released into society.  Nevertheless, the SVP is  
          constitutional because it "establish[es] a nonpunitive, civil  
          commitment scheme covering persons who are to be viewed, "'not  
          as criminals, but as sick persons.'" (Hubbart v. Superior Court  
          (People) (1999) 19 Cal.4th 1138 1166-1167; Welf. and Inst. code  
          § 6250.)

          c. Treatment and Confidentiality in SVP Commitments 

          Generally, records of treatment of DSH patients, including SVP  
          records, are confidential, unless otherwise specified.  (Welf. &  
          Inst. Code  5328.)<3>  Section 5238 states that "[a]ll  
          information and records obtained in the course of providing  
          services under? Division 6 [including SVP law] to either  
          voluntary or involuntary recipients of services shall be  
          ---------------------------
          <3> However, the confidentiality and other rules concerning  
          treatment of mentally disordered offenders, persons not guilty  
          by reason of insanity and persons who are incompetent to stand  
          trial can be described as a patchwork of statutes and court  
          decisions.  For example, there are Evidence Code provisions  
          concerning MDOs and specific provisions authorizing release of  
          records where specified forensic patients are accused of a crime  
          in a DSH facility.  (Welf. & Inst. Code 5328.1.)









          SB 507  (Pavley )                                         PageQ  
          of?
          
          confidential."  (See, Gilbert v. Superior Court (2014) 224  
          Cal.App.4th 376,)

          However, subdivision (c) of Section 6603 creates a limited  
          exception to confidentiality rules in the context of updated or  
          replacement expert evaluations on the issue of whether a person  
          is an SVP:  Under section 6603, subdivision (c)(1), the People  
          may obtain updated evaluations of an alleged SVP and obtain  
          access to "otherwise confidential treatment information ? to the  
          extent such information is contained in an updated mental  
          evaluation." (Albertson v. Superior Court (2001) 25 Cal.4th 796,  
          807, italics added.)

          The Supreme Court recently reiterated the limitations on the  
          prosecution's access to treatment information, specifically  
          holding that section 6603 does not authorize disclosure of  
          therapy records directly to the People but authorizes review of  
          such records by the independent evaluators and grants the People  
          access to otherwise confidential treatment information only to  
          the extent it is contained in the updated mental evaluation.   
          (People v. Gonzales (2013) 56 Cal.4th 353, 379, fn. 11.)

          The SVP law requires that an SVP be given or offered treatment  
          if the state has proved that he is too dangerous to be released  
          into society after he has served his full prison term.  It  
          appears that the most complete way to determine if an SVP  
          patient continues to pose an unacceptable danger is through an  
          evaluation of his or her most recent psychiatric records, as  
          well as past reports and transcripts.  However, review of  
          treatment records for purposes of recommitment proceedings  
          raises constitutional privacy and statutory confidentiality  
          issues.  (Sporich v. Superior Court (2000) 77Cal.App.4th at pp.  
          426-427.)<4>

          The sponsor and author cite People v. Martinez (1994) 88  
          Cal.App.4th 465 in explicitly or implicitly arguing that an SVP  
          or alleged SVP has little or no expectation of privacy in any of  
          his medical or psychological records, including records of  
          ---------------------------
          <4> The core holding in Sporich was that prosecutor could not  
          obtain updated or new evaluations for a commitment proceeding.   
          The Legislature superseded this holding by granting express  
          authority for the state to obtain updated or new evaluations in  
          Welfare and Institutions Code Section 6603, subdivision (c) -  
          the section and subdivision considered by this bill.








          SB 507  (Pavley )                                         PageR  
          of?
          
          individual psychotherapy sessions.  It does not appear that  
          Martinez can be read that broadly, although the opinion includes  
          some statements to that effect. The court in Martinez also  
          recognized that an SVP patient has substantial privacy  
          expectations or rights in medical or psychological matters,  
          including psychotherapy records that are generally protected by  
          the psychotherapist/patient privilege.   The court,  
          nevertheless, held that the state's interest in the records  
          outweighed Martinez's privacy interests, although the opinion  
          can be read as holding that giving the prosecutor access to  
          psychotherapy records was error, although harmless in the  
          context of the SVP trial.  (Id., at p 479.).  Further, the court  
          specifically rejected a privacy claim as to the records relied  
          upon by the experts who evaluated Martinez.  The court held: 

               The examination of records by the prosecutor was  
               harmless. The relevant information in the records was  
               available to the prosecutor in summary form in the  
               reports from Drs. Vognsen and Malinek. Defendant  
               concedes that these witnesses were authorized to  
               examine and consider defendant's records, and because  
               they relied upon these records in forming their  
               opinions, it was proper for the prosecutor to examine  
               them concerning this information.  (See People v.  
               Visciotti (1992) 2 Cal. 4th 1, 81["It is proper to  
               question an expert about matter on which the expert  
               bases his or her opinion and on the reasons for that  
               opinion"].) Moreover, their testimony constituted  
               substantial, if not compelling, evidence to support  
               the trial court's decision to sustain the commitment  
               petition.  Consequently, any impropriety by the  
               prosecutor in reviewing defendant's records was  
               harmless under any standard of review. (See Chapman v.  
               California (1967) 386 U.S. 18; People v. Watson (1956)  
               46 Cal. 2d 818.)  (People v. Martinez, supra, 88  
               Cal.App.4th 465, 482.)

          The court in Martinez also appears to have relied upon upheld  
          the disclosure of Martinez's treatment records based on the  
          "dangerous patient" exception in Evidence Code Section 1024 to  













          SB 507  (Pavley )                                         PageS  
          of?
          
          the confidentiality of psychotherapy records.<5>  (Id., at p.  
          479-484.)  It appears that the court applied the dangerous  
          patient exception because the purpose of the former MDSO law and  
          the SVP law is to protect the public from sexual crimes.  Such  
          reasoning could arguably establish a blanket exception to  
          confidentiality in any involuntary commitment based on the  
          danger to the public that flowed from a person's mental  
          disorder.

          The California Supreme Court in People v. Gonzales, supra, 56  
          Cal.4th 353, held that the dangerous patient exception does not,  
          per se, authorize disclosure to the prosecutor in a SVP case of  
          the alleged SVP or SVP patient's psychotherapy records.  (Id.,  
          at pp. 959-960.)  The dangerous patient exception allows  
          disclosure of confidential treatment information to prevent a  
          specific and imminent harm.  Gonzalez's holding that the  
          dangerous patient exception does not generally apply in an SVP  
          case does not, however, tell us when prosecutors can get access  
          to such records. 

          This bill would essentially eliminate the restrictions and  
          limitation imposed on the state in seeking to obtain  
          treatment records that were considered in updated  
          evaluations.  The sponsor - the Los Angeles Attorney -  
          emphasizes the public safety purpose of the SVPA and  
          essentially argues that any right or expectation of privacy  
          for an SVP in his treatment records must yield to the  
          prosecutor's need to obtain all information necessary to  
          establish that a person is an SVP or remains an SVP.  

          d. Federal Court Opinion noted in Author's Background  
          Material- Seaton v. Mayberg 

          The author's background cites a decision of the Federal 9th  
          Circuit Court of Appeal in arguing that an SVP or an  
          alleged SVP has no viable claim of confidentiality or  
          privacy in treatment records:

               In a section 1983 civil rights claim, the Ninth  
               ----------------------
          <5> The opinion in Martinez analyzes SVP privacy and  
          confidentiality from a number of perspectives, without clearly  
          explaining the basis for its ruling.  The opinion can arguably  
          be cited as supporting opposing arguments.









          SB 507  (Pavley )                                         PageT  
          of?
          
               Circuit court evaluated the claim and determined that  
               there is no constitutional right to privacy in medical  
               records protected by the due process clause. "Whatever  
               constitutional right to privacy of medical information  
               may exist, the California civil commitment procedure  
               for sexually violent predators falls outside it."  
               (Seaton v. Mayberg (2010) 610 P.3rd 530, 539.) The  
               court set forth several examples where those without  
               criminal convictions have no right to privacy and  
               found that a sexually violent predator evaluation  
               falls within those long established exceptions to the  
               confidentiality of medical communications. Other  
               public health and safety requirements overcoming a  
               right to privacy include cases of restraint due to  
               insanity, contagious diseases, abuse of children, and  
               gunshot wounds.  ...California is the only state that  
               does not have a legislative provision granting  
               prosecutors access to mental health and medical  
               records for the purpose of carrying out sexually  
               violent predator commitment law.

          Seaton concerned the confidentiality of the records of a prison  
          inmate who was being evaluated as an alleged SVP, not treatment  
          records of a person already committed to the SVP program.  (Id.,  
          at pp. 532-533.)  Seaton can be read as holding that the federal  
          constitution does not include a substantial right of privacy  
          beyond family and procreative matters.  Specifically the court  
          stated that constitutional protections do not extend to medical  
          records generally, contrary to the assumptions of many.  For  
          example, the privacy protections in HIPPA cannot be asserted by  
          an individual citizen.   (Id., at pp. 533-541.)

          e.California Courts and Seaton

          California courts have considered Seaton and noted that the  
          opinions of lower federal courts concerning federal  
          constitutional issues, although persuasive, are not binding on  
          California courts.  (People v. Zapien (1993) 4 Cal.4th 929,  
          989.)  These California decisions have found that SVP treatment  
          records are essentially presumed to be confidential until a  
          contrary rule is demonstrated.  (People v. Gonzales, supra, 56  
          Cal.4th 353, 387, fn. 19.) 

          f. SVP Patients may be Reluctant to Engage in Psychotherapy if  









          SB 507  (Pavley )                                         PageU  
          of?
          
            the Records are Completely Open to Prosecutors as Evidence  
            that a Person is or Remains an SVP

          The policy basis for the confidentiality of psychotherapy  
          records has been long recognized by California courts: "[A]n  
          environment of confidentiality of treatment is vitally important  
          to the successful operation of psychotherapy." (In re Lifschutz  
          (1970) 2 Cal.3d 415, 422.)  This bill squarely presents the  
          issue of how this principle should be applied to SVP treatment.   
          It can be argued that if all therapy records are open to  
          prosecutors, SVP patients may be particularly reluctant to be  
          truthful in therapy, greatly reducing the effectiveness of  
          treatment.   If all psychotherapy records are available to the  
          prosecutor, an SVP would have a considerable incentive to be  
          dishonest and attempt to manipulate his therapist in the hope of  
          creating a record that he is no longer a sexual predator.    

          Prior to 2006 - when an SVP was subject to recommitment every  
                                two years - DSH personnel noted that many SVP patients did not  
          actively engage in treatment because they were afraid that  
          admissions of prior sexual misconduct would be used against them  
          at a recommitment trial.
          Under current law, an SVP is committed indefinitely.  He must  
          essentially create a record that he is no longer an SVP, rather  
          than hope that the prosecutor would not prevail at a  
          recommitment trial 

          As noted above, the SVP law is constitutional because its  
          purpose is treatment of mentally disordered persons, not  
          punishment or preventive detention.  (Hubbart v. Superior Court  
          (People), supra, 19 Cal.4th 1138 1166-1167.)   If all  
          psychotherapy records are open to prosecutors, SVP patients will  
          likely argue that the records simply become evidence for  
          prosecutors of SVP status, equivalent to evidence of guilt at a  
          criminal trial.

          Should this bill be enacted, the Legislature in coming years may  
          wish to review how the opening of all treatment records to  
          prosecutors changes the conduct of SVP patients, the matters  
          considered at trial and trial outcomes.  Committee members may  
          wish to consider whether access to psychotherapy records by  
          prosecutors should be obtained through a motion to the court in  
          which the prosecutor can establish good cause for release of the  
          records.









          SB 507  (Pavley )                                         PageV  
          of?
          



                                      -- END -