BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 507


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          SENATE THIRD READING


          SB  
          507 (Pavley)


          As Amended  July 2, 2015


          Majority vote


          SENATE VOTE:  40-0


           ------------------------------------------------------------------ 
          |Committee       |Votes|Ayes                  |Noes                |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Public Safety   |7-0  |Quirk, Melendez,      |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |Jones-Sawyer, Lackey, |                    |
          |                |     |Lopez, Low, Santiago  |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Appropriations  |17-0 |Gomez, Bigelow,       |                    |
          |                |     |Bloom, Bonta,         |                    |
          |                |     |Calderon, Chang,      |                    |
          |                |     |Nazarian, Eggman,     |                    |
          |                |     |Gallagher, Eduardo    |                    |
          |                |     |Garcia, Holden,       |                    |
          |                |     |Jones, Quirk, Rendon, |                    |
          |                |     |Wagner, Weber, Wood   |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |








                                                                     SB 507


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          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.  


          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.










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          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:  


          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.  
          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."  


          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.  


          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.  









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          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.  


          6)Allows the prosecutor to obtain updated evaluations of the  
            alleged SVP if he or she determines they are necessary to  
            properly present the case for commitment.  The prosecutor may  
            also obtain replacement evaluations if the original evaluator  
            is no longer available to testify.  


          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.  


          8)Permits a person committed as a SVP to be held for an  
            indeterminate term upon commitment.  
          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.  


          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.  








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          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.  


          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.  


          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.  


          FISCAL EFFECT:  According to the Assembly Appropriations  
          Committee, potential future increased cost to the Department of  
          State Hospitals (DSH) if the release of the records extends the  
          period of custody of an SVP in the DSH, and minor additional  
          cost to provide copies of records utilized to conduct  
          evaluations.  The annual cost to DSH to treat an SVP is in the  
          range of $200,000.      


          COMMENTS:  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  








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          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 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 [DA] 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 [Welfare and Institutions Code] 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  








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          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.'


          "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  








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          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  
          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."   




          Analysis Prepared by:                                             
                          Sandy Uribe / PUB. S. / (916) 319-3744  FN:  
          0001613



















                                                                     SB 507


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