BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 507


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          Date of Hearing:  July 14, 2015


          Counsel:               Sandy Uribe








                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          SB  
          507 (Pavley) - As Amended July 2, 2015





          SUMMARY:  Allows the prosecutor petitioning for commitment of a  
          person alleged to be a sexually violent predator (SVP) to access  
          treatment records reviewed by the expert evaluators.   
          Specifically, this bill:  



          1)Requires an evaluator who is performing an updated evaluation  
            to include a statement listing all records reviewed to make  
            that evaluation.  









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          2)Allows either party to subpoena for a certified copy of the  
            records.  The records shall be provided to both the attorney  
            petitioning for commitment and the attorney for the SVP.


          3)Allows the attorneys to use the records for the SVP  
            proceedings, but prohibits disclosure for any other purpose.


          4)Specifies that the right of any party to object to all or a  
            portion of a subpoenaed record on grounds of prejudicial  
            effect outweighing probative value, or on the basis of  
            materiality to the issue of whether the person is a SVP or to  
            any other issue to be decided by the court remains unaffected.


          5)States that if the objection is sustained in whole or in part,  
            the record or records shall retain their confidentiality, as  
            specified.


          6)Specifies that this subdivision does not affect the right of a  
            party to seek other records regarding the SVP.


          7)Provides that with the exception created above, the rights of  
            a SVP to assert that his or her records are confidential are  
            not affected.


          8)States that this bill does not affect the California Supreme  
            Court's determination of the issue of whether or not an expert  
            retained by the district attorney in a SVP proceeding is  
            entitled to review otherwise confidential treatment  
            information.


          EXISTING LAW:  








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

          2)Defines a "sexually violent predator" 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).)

          3)Provides that if evaluators concur that a petition should be  
            filed to commit a person as a SVP, the Director of the  
            Department of State Hospitals (DSH) shall forward a request  
            for a petition for commitment to the pertinent prosecuting  
            attorney for the county.  Copies of the evaluation reports and  
            any other supporting documentation shall be made available to  
            that attorney.  (Welf. & Inst. Code, § 6601, subds. (d) &  
            (h).)

          4)States that if the county's designated prosecuting attorney  
            concurs with the recommendation, then the commitment petition  
            shall be filed in the county of conviction.  (Welf. & Inst.  
            Code, § 6601, subd. (i).)

          5)Entitles a person alleged to be a SVP to certain rights,  
            including the right to a jury trial, to the assistance of  
            counsel, to retain experts or professionals to perform an  
            examination, and to have access to all relevant medical and  
            psychological records and reports.  (Welf. & Inst. Code, §  
            6603, subd. (a).)

          6)Allows the prosecutor to obtain updated evaluations of the  
            alleged SVP if he or she determines they are necessary to  








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            properly present the case for commitment.  The prosecutor may  
            also obtain replacement evaluations if the original evaluator  
            is no longer available to testify.  (Welf. & Inst. Code, §  
            6603, subd. (c).)

          7)Specifies that updated or replacement evaluations include  
            review of available medical and psychological records,  
            including treatment records, consultation with current  
            treating clinicians, and interviews with the alleged SVP.   
            (Welf. & Inst. Code, § 6603, subd. (c).)

          8)Permits a person committed as a SVP to be held for an  
            indeterminate term upon commitment.  (Welf. & Inst. Code, §§  
            6604 & 6604.1.)

          9)Requires that a person found to have been a SVP and committed  
            to the DSH have a current examination on his or her mental  
            condition made at least yearly.  The report shall be in the  
            form of a declaration.  The report must be filed with the  
            court and also be served on the prosecuting agency involved in  
            the initial commitment.  The report shall include  
            consideration of conditional release to a less restrictive  
            alternative or an unconditional release is in the best  
            interest of the person and also what conditions can be imposed  
            to adequately protect the community.  (Welf. & Inst. Code, §  
            6604.9.)

          10)  Permits the SVP to retain a qualified expert or  
            professional person to examine him or her, and the retained  
            individual shall have access to all records concerning the  
            SVP.  (Welf. & Inst. Code, § 6604.9, subd. (a).)

          11)  Provides that when DSH determines that the person's  
            condition has so changed that he or she is not likely to  
            commit acts of predatory sexual violence while under community  
            treatment and supervision, then the DSH Director shall forward  
            a report and recommendation for conditional release to the  
            court, the prosecuting agency, and the attorney of record for  
            the committed person.  (Welf. & Inst. Code, § 6607.)








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          12)  Establishes a process whereby a person committed as a SVP  
            can petition for conditional release any time after one year  
            of commitment, notwithstanding the lack of recommendation or  
            concurrence by the Director of DSH.  (Welf. & Inst. Code, §  
            6608, subd. (a).)

          13)  Provides that all information and records obtained in the  
            course of providing services to either a voluntary or  
            involuntary recipient of services under the Sexually Violent  
            Predator Act (SVPA) shall be confidential, except under  
            limited circumstances.  (Welf. & Inst. Code, § 5328.)

          FISCAL EFFECT:  Unknown





          COMMENTS:  



          1)Author's Statement:  According to the author, "SB 507  
            addresses the need for fair hearings when Sexually Violent  
            Predators (SVPs) come up for state hospital commitment  
            reviews.  This bill establishes that both prosecuting  
            attorneys and defense attorneys will have equal access to  
            mental health treatment records before SVPs are assessed for  
            their potential release from state's hospitals. A lack of  
            access to these records can deprive judges and juries of the  
            information they need to decide whether or not it is safe to  
            release a violent sex offender from a state hospital.  The  
            records would remain confidential for all purposes other than  
            the SVP proceedings.

          "Under California law, SVPs are those who have been convicted of  
            a sexually violent offense, such as forcible rape, forcible  
            sodomy, or child molestation, and who have been determined by  








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            a judge or jury to be likely to commit a similar offense in  
            the future due to a diagnosed mental disorder.  In these  
            instances, SVPs are committed to a state hospital.

          "In 1996, the Legislature created the Sex Offender Commitment  
            Program to target a small, but extremely dangerous subset of  
            sexually violent offenders who present a continuing threat to  
            society because their diagnosed mental disorders predispose  
            them to engage in sexually violent criminal behavior.

          "This can be particularly problematic in SVP cases because the  
            District Attorney is charged with proving to a unanimous jury,  
            beyond a reasonable doubt, that a sexual predator currently  
            has a diagnosed mental disorder which predisposes him to  
            commit sexually violent crimes, and that he meets the criteria  
            for indefinite commitment of a state hospital for sex offender  
            treatment.

          "In Albertson v. Superior Court (2001) 25 Cal. 4th 796, the  
            court held that WIC section 6603 granted express authority for  
            updated evaluations and clarified an exception to the general  
            rule of confidentiality of treatment records in that it allows  
            the district attorney "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.

          "The court issued this decision immediately after the  
            Legislature enacted Section 6603 to allow prosecuting  
            attorneys to request updated evaluations.  Section 6603 states  
            that the updated evaluations shall include a review of medical  
            and mental health records.  It did not explicitly grant access  
            of the records to prosecutors, nor did it explicitly deny or  
            limit access either.  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.'









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          "At the present time, whether or not the DA is granted direct  
            access to the records or whether the DA is only allowed to  
            access records relied upon by the evaluating psychologists,  
            depends upon the judge's reading of Albertson. As a result,  
            the issue is repeatedly litigated and the results vary  
            throughout California.

          "In Seaton vs. Mayberg (2010) 610 P.3rd 530, 539, the Ninth  
            Circuit court cited that sexually violent predator evaluations  
            fall within those long established exceptions to the  
            confidentiality of medical communications.  It cited other  
            public health and public safety requirements overcoming a  
            right to privacy 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  
            (Article I, Section 1 of the California Constitution) 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.

          "There are 20 states that have laws providing for involuntary  
            civil commitment of sexually violent predators similar to  
            California's SVP law, in addition to the federal SVP law (the  
            Adam Walsh Act).  California is the only state that does not  








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            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 an extended civil commitment scheme for sex  
            offenders who are about to be released from prison, but are  
            referred to the DSH for treatment in a state hospital because  
            they have suffered from a mental illness which causes them to  
            be a danger to the safety of others.

          The DSH uses a specified criterion to determine whether or not  
            an individual qualifies for treatment as a SVP.  Under  
            existing law, a person may be deemed a SVP if:  (a) the  
            defendant has committed specified sex offenses against two or  
            more victims; (b) the defendant has a diagnosable 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; and, (c) 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 is then be civilly  
            committed to a DSH facility for treatment. 









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          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, § 6605, subd. (a).)  In addition, the DSH  
            has an obligation to seek judicial review any time it believes  
            a person committed as a SVP no longer meets the criteria, not  
            just annually.  (Welf. & Inst. Code, § 6605, subd. (f).)

          The SVPA was substantially amended by Proposition 83 ("Jessica's  
            Law") 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 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.)

          3)Obtaining Release From Commitment:  A person committed as a  
            SVP may petition the court for conditional release or  
            unconditional discharge after one year of commitment.  (Welf.  
            & Inst. Code, § 6608, subd. (a).)  The petition can be filed  
            with, or without, the concurrence of the Director of State  
            Hospitals.  The Director's concurrence or lack thereof makes a  
            difference in the process used.

          A SVP can, with the concurrence of the Director of State  
            Hospitals, petition for unconditional discharge if the patient  
            "no longer meets the definition of a SVP," or for conditional  
            release.  (Welf. & Inst. Code, § 6604.9, subd. (d).)  If an  
            evaluator determines that the person no longer qualifies as a  
            SVP or that conditional release is in the person's best  
            interest and conditions can be imposed to adequately protect  
            the community, but the Director of State Hospitals disagrees  
            with the recommendation, the Director must nevertheless  
            authorize the petition.  (People v. Landau (2011) 199  








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            Cal.App.4th 31, 37-39.)  When the petition is filed with the  
            concurrence of the DSH, the court order a show cause hearing.  
            (Welf. & Inst. Code, § 6604.9, subd. (f).)  If probable cause  
            is found, the patient thereafter has a right to a jury trial  
            and is entitled to relief unless the district attorney proves  
            "beyond a reasonable doubt that the committed person's  
            diagnosed mental disorder remains such that he or she is a  
            danger to the health and safety of others and is likely to  
            engage in sexually violent behavior if discharged."  (Welf. &  
            Inst. Code, § 6605.) 

          A committed person may also petition for conditional release or  
            unconditional discharge notwithstanding the lack of  
            recommendation or concurrence by the Director of State  
            Hospitals. (Welf. & Inst. Code, § 6608, subd. (a).)  Upon  
            receipt of this type of petition, the court "shall endeavor  
            whenever possible to review the petition and determine if it  
            is based upon frivolous grounds and, if so, shall deny the  
            petition without a hearing."  (Welf. & Inst. Code, § 6608,  
            subd. (a).)  If the petition is not found to be frivolous, the  
            court is required to hold a hearing.  (People v. Smith (2013)  
            216 Cal.App.4th 947.)

          The SVPA does not define the term "frivolous."  The courts have  
            applied the definition of "frivolous" found in Code of Civil  
            Procedure section 128.5, subdivision (b)(2): "totally and  
            completely without merit" or "for the sole purpose of  
            harassing an opposing party."  (People v. Reynolds (2010) 181  
            Cal.App.4th 1402, 1411; see also People v. McKee, supra, 47  
            Cal.4th 1172; People v. Collins (2003) 110 Cal.App.4th 340,  
            349.)  Additionally, in Reynolds, supra, 181 Cal.App.4th at p.  
            1407, the court interpreted Welfare and Institutions Code  
            section 6608 to require the petitioner to allege facts in the  
            petition that will show he or she is not likely to engage in  
            sexually-violent criminal behavior due to a diagnosed mental  
            disorder, without supervision and treatment in the community,  
            since that is the relief requested.

          Once the court sets the hearing on the petition, then the  








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            petitioner is entitled to both the assistance of counsel, and  
            the appointment of an expert.  (People v. McKee, supra, 47  
            Cal.4th 1172, 1193.)  At the hearing, the person petitioning  
            for release has the burden of proof by a preponderance of the  
            evidence.  (Welf. & Inst. Code, § 6608, subd. (i); People v.  
            Rasmuson (2006) 145 Cal.App.4th 1487, 1503.)  If the petition  
            is denied, the SVP may not file a subsequent petition until  
            one year from the date of the denial.  (Welf. & Inst. Code, §  
            6608, subd. (h).)
           
           4)Disclosure of Records:  Under current law, the prosecuting  
            attorney can access the mental health records of a person who  
            is initially referred to a state hospital for a SVP screening.  
             (See Welf. & Inst. Code, § 6601, subd. (d).)  The  
            psychotherapist-patient privilege arguably does not attach  
            because the consultation is not for purposes of treatment;  
            rather the person is being examined by a potential adversary's  
            doctor for the potential adversary's purpose.  (See e.g.,  
            Seaton v. Mayberg (2010) 610 F.3d 530, 540.)

          However, once the person is in treatment, Welfare and  
            Institutions Code section 5328 requires the confidentiality of  
            all information and records obtained in the course of  
            providing services to either voluntary or involuntary  
            recipients of treatment under the SVPA.  There are several  
            limited exceptions to the general rule on the confidentiality  
            of treatment records.  For example, section 5328, subdivision  
            (f) permits release of information "to the courts, as  
            necessary to the administration of justice."  Similarly,  
            subdivision (j) permits release "to the attorney for the  
            patient in any and all proceedings upon presentation of a  
            release of information signed by the patient."

          Additionally, under section 6603, the prosecution may access  
            "otherwise confidential treatment information ? to the extent  
            such information is contained in an updated evaluation."  

          In Albertson v. Superior Court (2001) 25 Cal.4th 796,  the  
            California Supreme Court considered, inter alia, whether the  








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            legislation amending section 6603, subdivision (c), regarding  
            updated and replacement evaluations authorized the prosecutor  
            to obtain access to the SVP's treatment records.  The statute  
            provides in pertinent part:  "These 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 person being evaluated, either voluntarily or by court  
            order."  Relying on legislative history the court held "that  
            in an SVPA proceeding a local government's designated counsel  
            (here, the district attorney) may obtain, through updated  
            mental evaluations, otherwise confidential information  
            concerning an alleged SVP's treatment."  (Id. at p. 805.)  The  
            court referenced letters in opposition to the bill which  
            raised concerns that the language would compromise  
            confidentiality, and a recommendation from the Assembly Public  
            Safety Committee to omit the language mandating the release of  
            treatment records.  (Id. at pp. 806-807.)  The court noted  
                                                                         that despite this recommendation, the final version of the  
            bill left intact the language allowing review of treatment  
            records.  (Id. at p. 807.)  The court concluded that the  
            provision provides an exception to the general rule of  
            confidentiality of treatment records, and allows the district  
            attorney access to treatment record information, insofar as  
            that information is contained in an updated evaluation.  
            (Ibid.; italics added.)

          However, at least one recent appellate court case has  
            interpreted section 6603 to give prosecutors limited direct  
            access to such records.  See (Gilbert v. Superior Court (2014)  
            224 Cal.App.4th 367, 382.)  

          This bill seeks to ensure that the prosecuting attorney has  
            access to all the records on which the evaluators have based  
            their evaluations.  The most recent amendments to the bill  
            require an evaluator to list in the evaluation all the records  
            relied upon.  These are the records which will be subject to  
            disclosure.









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          It should be noted that the California Supreme Court recently  
            granted review in People v. Superior Court (Smith) (Feb. 24,  
            2015, G050827) [nonpub. opn.], review granted 5/20/2015  
            (S225562) and one of the questions it is considering whether  
            prosecutors pursing recommitment under the SVP statute should  
            have access to confidential patient-psychotherapist records.   
            Should the Legislature intervene at this time when the subject  
            matter addressed by this bill will be decided by the  
            California Supreme Court?

          5)Psychotherapist-Patient Privilege:  "Crucial to  
            psychotherapeutic treatment is a patient's readiness to reveal  
            his thoughts, dreams, fantasies, sins and shame. It would be  
            unreasonable to expect a patient to freely participate in such  
            treatment if he knew that what he said and what the therapist  
            learned from what he said could all be revealed in court.  A  
            patient in therapy has and needs a justifiable expectation of  
            confidentiality as to his psychotherapeutic treatment." (In re  
            Eduardo A. (1989) 209 Cal.App.3d 1038, 1042.)

          Recently, the California Supreme Court held that in a trial  
            under the SVPA, admission of defendant's therapy records and  
            therapist's testimony, under the dangerous patient exception  
            was erroneous.  (People v. Gonzales (2013) 56 Cal.4th 353,  
            357.)  Before the SVP trial, the prosecutor sought to access  
            the defendant's psychological records compiled during  
            evaluations and counseling sessions.  The trial court granted  
            access to the records based on the dangerous-patient exception  
            to the psychotherapist-patient privilege.  The appellate court  
            reversed, holding that disclosure was inappropriate and that  
            the error amounted to a violation of the federal  
            constitutional right of privacy.  The Supreme Court granted  
            the People's petition for review.  (Ibid.)  The Supreme Court  
            agreed that it was erroneous to permit disclosure of the  
            records under the dangerous-patient exception to the  
            psychotherapist-patient privilege. 

          The court stated that, regardless of whether or not it would be  
            useful or valuable for a district attorney to have access to  








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            confidential communications made by a SVP in the course of  
            therapy sessions in order to evaluate his or her mental  
            condition or potential danger, the usefulness or value of such  
            information was not a valid basis to eliminate the patient's  
            right to protect against the disclosure of such  
            communications. (Id. at p. 374.)

          However, the Court did note that the privilege is not absolute  
            and when a therapist providing treatment to a SVP concludes  
            that the patient is a danger to himself or others and  
            disclosure is necessary to prevent the threatened danger,  
            despite the psychotherapist-patient privilege, the therapist  
            may testify in an SVP proceeding.  (Id. at p. 380.)  In this  
            case, the trial court's conclusion that the dangerous patient  
            exception applied was based solely on the prosecution's  
            conclusory offer of proof that the records and testimony of  
            the therapist would show that the therapist believed appellant  
            presented a danger, and no actual proof was presented.   
            Nevertheless, the Court noted that even when some of the  
            patient's statements in therapy might be subject to disclosure  
            under the dangerous-patient exception, the rest of the  
            confidential communications during therapy sessions remain  
            privileged.  (Id. at p. 382.)  

          6)Argument in Support:  The Los Angeles District Attorney's  
            Office, the sponsor of this bill, states, "Los Angeles courts  
            have recently refused to provide prosecutors with access to  
            treatment records necessary to prepare for trial.  Given that  
            SVP cases are based upon the current mental condition of the  
            offender and given that the district attorney must prove the  
            People's care to a jury, beyond a reasonable doubt, this  
            places the People in an untenable position.

          "SB 507 would require that attorneys for both the People and the  
            SVP be provided copies of records that were reviewed by the  
            State Department of State Hospital experts as part of the  
            offender's updated evaluation.  Since these experts testify in  
            the SVP trial, the bill permits records they reviewed as part  
            of their evaluation to be used for the purpose of that trial.   








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            However, the records would remain confidential for all other  
            purposes?.

          "In the past, state hospital records were routinely provided to  
            district attorneys in SVP cases.  In the last few years, Los  
            Angeles courts have denied requests for subpoenas for state  
            hospital records when requested by the People.  A review of  
            California counties revealed that courts in every other  
            California county surveyed grant the People access to these  
            records.  Moreover, every one of the 20 states that have  
            sexually violent predator laws grants prosecutors access to  
            mental health and medical records for the purpose of carrying  
            out the law.

          "The SVP is entitled to hire his or her own experts, at the  
            expense of the state.  That expert is given full access to the  
            mental health records.  It is difficult, if not impossible, to  
            cross examine the SVP's expert without knowing what is in the  
            mental health records.

          "Even direct examination of the state hospital evaluators is  
            difficult as crucial evidence is often left out of their  
            reports.  This is unavoidable given that the evaluator  
            generally provides only a brief summary of the records he or  
            she has reviewed as part of the evaluation?." 



          7)Arguments in Opposition:

             a)   The California Psychiatric Association (CPA) writes,  
               "The CPA has concerns that SB 507 would breach the  
               patient-psychotherapist privilege thereby undermining both  
               the purposes and effectiveness of therapy.  Courts have  
               ruled, that even though 'the privilege may operate in  
               particular cases to withhold relevant information, the  
               interests of society will be better served if psychiatrists  
               are able to assure patients that their confidences will be  
               protects (sic).'  (People v. Gonzales (2013) 56 Cal.4th  








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               353, citing California Law Revision Com.)  CPA's further  
               concern is that if enacted SB 507 would not only have  
               serious adverse effects on its members, other mental health  
               professionals as well as on the patients they treat, it may  
               open the door to further incursions into the relationship  
               between a therapist and their patient.

             "The CPA supports current law that provides comprehensive  
               safeguards requiring and permitting reports to the  
               authorities from an individual's confidential therapy under  
               certain delineated circumstances.  None allows direct  
               disclosure of the record themselves.  The precedent SB 507  
               would set were it to be enacted may threaten to broaden out  
               those exceptions in carefully crafted current law and could  
               potentially allow direct disclosure in those laws."

             b)   The California Public Defenders Association states,  
               "Under existing law, individuals subject to Welfare &  
               Institutions Code section 6603 are Pretrial Detainees.   
               They have not been committed under the SVPA.  They are  
               being held on probable cause pending trial.

             "Under existing practice, many of these Pretrial Detainee  
               Individuals have been given the opportunity for the first  
               time and have successfully participated in sex offender  
               treatment at Coalinga State Hospital. Some of these  
               Pretrial Detainees have completed years of sex offender  
               treatment at Coalinga which entailed undergoing a course of  
               incredibly invasive treatment, where they were expected to  
               speak openly, in a group setting, about their most painful  
               childhood experiences, their most shameful thoughts,  
               fantasies and actions, and their plans for relapse  
               prevention when released.  Most, if not, all of them were  
               never given the option of participating in a comprehensive  
               intensive sex offender treatment program before because,  
               with the exception of a small pilot program, sex offender  
               treatment has not been available in California prisons for  
               decades.  If sex offender treatment had been offered in  
               prison, many of these Pretrial Detainees Individuals would  








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               never have been held under the SVPA.

             "When the prosecution requests updated evaluations pursuant  
               to Welfare & Institutions Code section 6603, the  
               independent and state evaluators are obligated to determine  
               whether the Pretrial Detainees are currently dangerous. If  
               the Pretrial Detainee is infirm, significantly older or has  
               successfully completed many years of sex offender  
               treatment, the state and independent mental health  
               professionals may find that the Pretrial Detainee does not  
               currently meet the criteria for commitment under the SVPA.  
               The evaluators' conclusions are grounded in evidence based  
               research. The evaluators are trained by the Department of  
               State Hospitals and adhere to the protocol promulgated by  
               the Department. 

             "SB 507 would give district attorneys access to the Pretrial  
               Detainees' mental health records so that they could "second  
               guess" the Department of State Hospitals mental health  
               professionals thus allowing the district attorneys to  
               supplant the Department's evidence based judgment with  
               their own non-scientific judgment about an individual  
               Pretrial Detainee's future dangerousness. This is a  
               slippery slope which trends away from a civil commitment  
               scheme based on independent expert opinion toward further  
               incarceration for past crimes." 

             c)   According to the ACLU, "We appreciate that the bill has  
               been amended to make clear that it is not intended to  
               impact the issue of prosecutor's use of expert witnesses in  
               SVP proceedings, now before the California Supreme Court in  
               the case of People v. Superior Court (Smith) (Docket No.  
               S225562). This has been one of our concerns about the bill.

             "The Smith case will also address the issue that is the core  
               of SB 507: whether prosecutors pursing recommitment under  
               the SVP statute should have access to confidential  
               patient-psychotherapist records. We believe that the  
               Legislature should wait until the court has ruled on this  








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               issue before changing the current rules.

             "We remain concerned that SB 507 invades the confidential  
               nature of the patient-therapist relationship, as discussed  
               in People v. Gonzales (2013) 56 Cal.4th 353. Giving the  
               prosecution complete and unfettered access to the patient's  
               treatment records would make it even more difficult for the  
               patient to share honestly and openly with the therapist  
               and, ultimately, make it more difficult to treat these  
               individuals."

          8)Related Legislation: AB 262 (Lackey) places additional  
            residency restrictions on SVP's conditionally released for  
            community outpatient treatment.  AB 262 failed passage in this  
            committee and granted reconsideration.

          9)Prior Legislation:  

             a)   SB 295 (Emmerson), Chapter 182, Statutes of 2013,  
               revised the procedures to be used by the courts for SVP  
               petitions, whether with or without DSH concurrence, for  
               conditional release and unconditional discharge.

             b)   Proposition 83 ("Jessica's Law"), operative on November  
               7, 2006, and SB 1128 (Alquist), Chapter 337, Statutes of  
               2006, made numerous changes to sex offender and SVP law,  
               including making commitment terms indefinite.

             c)   SB 2018 (Schiff), Chapter 420, Statutes of 2000, allows  
               the prosecutor to obtain updated or replacement  
               evaluations.



          REGISTERED SUPPORT / OPPOSITION:












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          Support


          


          Los Angeles County District Attorney's Office (Sponsor)


          Association of Deputy District Attorneys
          Association for Los Angeles Deputy Sheriffs
          California Association of Code Enforcement Officers
          California College and University Police Chiefs Association
          California Narcotic Officers Association
          California State Lodge, Fraternal Order of Police
          Crime Victims United of California
          Long Beach Police Officers Association
          Los Angeles County Professional Peace Officers Association
          Los Angeles Police Protective League
          Sacramento County Deputy Sheriffs' Association 
          Riverside Sheriffs Association



          Opposition


          


          American Civil Liberties Union


          California Psychiatric Association
          California Public Defenders Association
          Legal Services for Prisoners with Children

          Analysis Prepared by:Sandy Uribe / PUB. S. / (916)  








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          319-3744