BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 507| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 507 Author: Pavley (D) Amended: 6/2/15 Vote: 21 SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/28/15 AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15 AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen SUBJECT: Sexually violent predators SOURCE: Los Angeles County District Attorney DIGEST: This bill 1) provides that the prosecutor or county attorney petitioning for commitment of a person alleged to be a sexually violent predator (SVP) and the attorney for the person shall have access to records considered by the expert evaluators who performed replacement or updated evaluations of the alleged SVP; 2) specifies that the records are to be obtained through a subpoena duces tecum issued by the court; 3) allows either party to move to quash the subpoena on the grounds that the records, or any part thereof, is not likely to discovery of evidence relevant to whether the person is an SVP; 4) specifies that records not disclosed pursuant to the motion retain confidentiality protections; 5) prohibits the prosecutor from disclosing the records to a retained expert; and, 6) prohibits any use of the records beyond necessary for trial in the matter. ANALYSIS: SB 507 Page 2 Existing law: 1)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).) 2)Provides that where the Department of Corrections and Rehabilitation determines that an inmate fits specified criteria, the inmate shall be referred for evaluation to the Department of State Hospitals (DSH). (Welf. & Inst. Code § 6601, subd. (b).) 3)Provides that the inmate shall be evaluated by any combination of two practicing psychiatrists or psychologists designated by the Director of the DSH. If both evaluators concur that the person meets SVP commitment criteria, DSH shall request the district attorney or county counsel in the county of commitment to prison to file a commitment petition. (Welf. & Inst. Code § 6601, subd. (d).) The district attorney typically represents the state in SVP cases. 4)Provides that if the evaluators designated by DSH disagree, two independent evaluators shall be appointed. If the second pair of evaluators agree that the person is an SVP, the case can proceed. (Welf. & Inst. Code § 6601, subd. (c)-(e).) 5)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." (Welf. & Inst. Code § 6601, subd. (d).) 6)Grants an alleged SVP "access to all relevant medical and psychological records and reports" for purposes of trial. (Welf. & Inst. Code, § 6603, subd. (a).) 7)Provides that the matter shall be set for trial if the court finds probable cause that the person is an SVP and that eiher party may demand the trial be by jury (Welf. Inst. Code § SB 507 Page 3 6602.) 8)Provides that the prosecutor has the burden proof beyond a reasonable doubt that the person is an SVP. (Welf. & Inst. Code §§ 6603 and 6604.) 9)Provides that if the prosecutor determines that updated or replacement evaluations are necessary in order to properly present the case, DSH shall perform the updated evaluations, as follows: a) The 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. b) The evaluations shall include review of available medical and psychological records, including treatment records, consultation with current treating clinicians, and interviews of the alleged SVP. c) DSH shall forward the new or updated evaluations to the prosecutor and counsel for the alleged SVP. d) 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).) 1) 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.) 2) 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: SB 507 Page 4 a) The evaluator has failed to adhere to the protocol of the DSH; b) The evaluator's license has been suspended or revoked; c) The evaluator is legally unavailable, as specified; or d) 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).) 1) 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)(D).) This bill: 1)Provides that where updated or replacement evaluations have been prepared for a commitment trial, the evaluator shall list all records he or she considered in preparing the evaluation. 2)Provides that the prosecutor or the person alleged to be an SVP can request that the court obtain the records through a subpoena duces tecum. 3)Provides that either party may move to quash the subpoena, in whole or in part, on the grounds that the record or records would not lead to discovery of admissible evidence on the question of whether the person is an SVP. SB 507 Page 5 4)Provides that records that would lead to admissible evidence shall be provided to the prosecutor and the alleged SVP and that the parties may use the records at trial and shall not disclose them for any other purpose. 5)Provides that any records not subject to disclosure, including records covered by an order granting a motion to quash the subpoena, shall remain confidential and subject to an applicable evidentiary privilege, as specified. 6)Provides that the provisions authorizing disclosure of records do not create any new rights or limitations concerning the hiring of expert witnesses or an expert's access to records. The records shall not be disclosed to any third party, including an expert retained by the prosecutor or the alleged SVP, except pursuant to a court order. Background: The Sexually Violent Predator Act (SVPA) establishes a civil commitment scheme for sex offenders who are about to be released from prison. There has only been a single woman committed to the SVP program. A person is subject to commitment as an SVP if he has committed specified sex offense, has a diagnosable mental disorder that makes it likely that he will engage in sexually-violent criminal behavior, and two licensed psychiatrists or psychologists concur in the diagnosis. If both evaluators agree that the person meets SVP criteria, the case is referred to the district attorney (or county counsel) who may file a petition for civil commitment. Upon the filing of a petition, the court holds a probable cause hearing. If probable cause is found, the case proceeds to a trial at which the prosecutor has the burden to prove beyond a reasonable doubt that the offender meets the statutory criteria. (Cooley v. SB 507 Page 6 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 an SVP's mental condition and submit an annual report to the court. (Welf. & Inst. Code, § 6604.9.) DSH also has a continuing obligation to seek judicial review any time the director finds that a no longer meets SVP criteria. (Welf. & Inst. Code, § 6607.) The SVPA was substantially amended by Proposition 83 ("Jessica's Law") in 2006. Originally, a SVP commitment was for two years. Jessica's Law provides for indeterminate commitment, until it is shown that the person no longer poses a danger to others. (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. 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. (People v. Gonzales, supra, 46 Cal.4th, at p.384.) The SVPA law 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. The SVPA is constitutional because it "establishes a nonpunitive, civil commitment scheme covering persons who must be treated as sick persons, not criminals. (Hubbart v. Superior Court (People) SB 507 Page 7 (1999) 19 Cal.4th 1138 1166-1167.) Generally, records of treatment of DSH patients, including SVP records, are confidential, unless otherwise specified. (Welf. & Inst. Code 5328.) 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 confidential." (See, Gilbert v. Superior Court (2014) 224 Cal.App.4th 376,) There are numerous exceptions to the confidentiality of the treatment records of forensic patients. As relevant to this bill, 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 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.) 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, or patients may attempt to manipulate their therapists in the hope of creating a positive record. 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 SVPA is constitutional because its purpose is treatment of mentally disordered persons, not punishment or preventive detention. (Hubbart v. Superior Court (People), SB 507 Page 8 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. 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No According to the Senate Appropriations Committee: DSH administration: Minor administrative costs (General Fund) to DSH to provide certified copies of records utilized to conduct updated evaluations. SVP caseload: Potential future increase in annual state costs to the extent increased access to records results in fewer SVP releases from DSH custody. The annual cost to DSH to treat a SVP is estimated at $210,000 (General Fund). Court impact: Potential increase in court time and costs to the extent motions to quash the production of records results in lengthier hearings. SUPPORT: (6/1/15) Los Angeles County District Attorney (sponsor) Association of Deputy District Attorneys Association for Los Angeles Deputy Sheriffs California District Attorneys Association Crime Victims United of California Fraternal Order of Police; California State Lodge Los Angeles Police Protective League Riverside Sheriffs Association Sacramento County Deputy Sheriffs' Association Santa Ana Police Officers Association SB 507 Page 9 OPPOSITION: (6/1/15) American Civil Liberties Union California Public Defenders Association Prepared by:Jerome McGuire / PUB. S. / 6/2/15 20:47:33 **** END ****