BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 507|
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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:
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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 §
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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:
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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.
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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.
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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)
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(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),
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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
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OPPOSITION: (6/1/15)
American Civil Liberties Union
California Public Defenders Association
Prepared by:Jerome McGuire / PUB. S. /
6/2/15 20:47:33
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