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
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|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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