BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 507|
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UNFINISHED BUSINESS
Bill No: SB 507
Author: Pavley (D)
Amended: 7/2/15
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
SENATE FLOOR: 40-0, 6/4/15
AYES: Allen, Anderson, Bates, Beall, Berryhill, Block,
Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall,
Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson,
Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning,
Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Runner,
Stone, Vidak, Wieckowski, Wolk
ASSEMBLY FLOOR: 79-1, 9/10/15 - See last page for vote
SUBJECT: Sexually violent predators
SOURCE: Los Angeles County District Attorney
DIGEST: This bill (1) provides that in an Sexually Violent
Predator (SVP) proceeding, the prosecutor and the attorney for
an alleged SVP shall have access to records considered by an
expert who performed replacement or updated evaluations; (2)
specifies that the records shall be obtained through a court
subpoena; (3) allows either party to object that the records are
not relevant or are more prejudicial (unfairly harmful) than
relevant; (4) specifies that records not disclosed pursuant to
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the motion retain confidentiality protections; and (5) states
that the bill is not intended to affect the pending decision of
the California Supreme Court whether a prosecution expert is
entitled to review otherwise confidential SVP treatment records.
Assembly Amendments (1) strike the provisions that would have
authorized a prosecutor or defense attorney to move to quash
(rescind) a subpoena issued for SVP treatment records on the
grounds that the material would not lead to relevant evidence in
an SVP proceeding and, instead, provide that either party may
move the court to prohibit introduction of any evidence in the
records that is not relevant to the issue of the person's SVP
status; (2) and state that this bill is not intended to affect
the pending determination by the California Supreme in People
v. Superior Court (Smith) (S225562) whether a prosecution expert
is entitled to review otherwise confidential treatment records
in an SVP proceed.
ANALYSIS:
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
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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 §
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
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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 concludes 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:
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).)
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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 and that the records shall then be provided to the
prosecutor and counsel for the alleged SVP.
3)Prohibits the prosecutor and counsel for the SVP from using
the records except in the SVP proceeding.
4)Authorizes either party to move the court to bar admission
into evidence of all or any part of the records on the grounds
that the material is not relevant or that the prejudice of the
material outweighs its evidentiary value.
5)Provides that any records that are excluded from trial shall
retain confidentiality under the psychotherapist-patient
privilege or the statute providing confidentiality for records
of treatment of DSH patients.
6)Provides that except as concerns updated or replacement SVP
records, any party may assert that any records are
confidential treatment or therapy records.
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7)Provides that this bill is not intended to affect the
determination by the California Supreme Court whether a
prosecution expert is entitled to review otherwise
confidential treatment records of an alleged SVP.
Background
The Sexually Violent Predator Act (SVPA) establishes a civil
commitment scheme for sex offenders who are about to be released
from prison. 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. (All
but one SVP have been men.) If both evaluators agree that the
person meets SVP criteria, the case is referred to the county
prosecutor who may file a petition for civil commitment. In an
SVP trial the prosecutor has the burden to prove beyond a
reasonable doubt that the offender meets the statutory criteria.
(Cooley v. Superior Court (Martinez) (2002) 29 Cal.4th 228,
246.)
The DSH must conduct a yearly examination of an SVP 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.)
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).
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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)
(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
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is treatment of mentally disordered persons, not punishment or
preventive detention. (Hubbart v. Superior Court (People),
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 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.
SUPPORT: (Verified9/9/15)
Los Angeles County District Attorney (source)
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
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Los Angeles Police Protective League
Riverside Sheriffs Association
Sacramento County Deputy Sheriffs' Association
Santa Ana Police Officers Association
OPPOSITION: (Verified9/9/15)
American Civil Liberties Union
California Public Defenders Association
ASSEMBLY FLOOR: 79-1, 9/10/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,
Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,
Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia,
Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray,
Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones,
Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea,
Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago,
Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,
Wilk, Williams, Wood, Atkins
NOES: Beth Gaines
Prepared by:Jerome McGuire / PUB. S. /
9/10/15 23:22:49
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