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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