BILL ANALYSIS Ó
SB 1295
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Date of Hearing: June 21, 2016
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SB 1295
(Nielsen) - As Amended April 26, 2016
As Proposed to be Amended in Committee
SUMMARY: Authorizes the use of documentary evidence for
purposes of satisfying the criteria used to evaluate whether a
prisoner released on parole is required to be treated by the
State Department of State Hospitals as a mentally disordered
offender (MDO). Specifically, this bill:
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1)Specifies that in order to demonstrate that a prisoner is an
MDO, the existence or nature of the crime, for which the
prisoner has been convicted may be shown with documentary
evidence.
2)States that the details underlying the commission of the
offense that led to the conviction, including the use of force
or violence, causing serious bodily injury, or the threat to
use force or violence likely to produce substantial physical
harm, may be shown by documentary evidence, including, but not
limited to, preliminary hearing transcripts, trial
transcripts, probation and sentencing reports, and evaluations
by the State Department of State Hospitals.
EXISTING LAW:
1)Requires prisoners who meet the following criteria to be
deemed an MDO and treated by the State Department of State
Hospitals (DSH) as a condition of parole:
a) The inmate has a severe mental disorder;
b) The inmate used force or violence in committing the
underlying offense;
c) The severe mental disorder was one of the causes or an
aggravating factor in the commission of the offense;
d) The disorder is not in remission or capable of being
kept in remission without treatment;
e) The inmate was treated for the disorder for at least 90
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days in the year before the inmate's release; and,
f) By reason of the severe mental disorder, the inmate
poses a serious threat of physical harm to others. (Pen.
Code § 2962.)
2)Allows the Board of Parole Hearings (BPH), upon a showing of
good cause, to order the inmate to remain in custody for up to
45 days past the scheduled release date for a full MDO
evaluation. (Pen. Code § 2963.)
3)Allows the prisoner to challenge the MDO determination both
administratively (a hearing before the board) and judicially
(a superior court jury trial). (Pen. Code § 2966.)
4)Requires MDO treatment to be inpatient treatment unless there
is reasonable cause to believe that the parolee can be safely
and effectively treated on an outpatient basis. [Penal Code
Section 2964(a).] If the hospital does not place the parolee
on outpatient treatment within 60 days of receiving custody of
the parolee, he or she may request to hearing to determine
whether outpatient treatment is appropriate. (Pen. Code §
2964(b).)
5)Specifies that if the parolee's severe mental disorder is put
into remission during the parole period and can be kept that
way, the director of the hospital shall notify the BPH and
shall discontinue treatment. (Pen. Code § 2968.)
6)Allows the district attorney to file a petition with the
superior court seeking a one-year extension of the MDO
commitment. (Pen. Code § 2970.)
7)Specifies that the cost of treatment for an MDO, whether
inpatient or outpatient, is a state expense while the person
is under the jurisdiction of either CDCR or the state
hospital. (Pen. Code § 2976.)
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FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "SB 1295 seeks
to relieve crime victims from being required to give traumatic
testimony during a parole hearing of their mentally disordered
attacker. The bill would amend the Mentally Disordered
Offender (MDO) Act to allow admission of probation reports,
trial transcripts, and other documentary evidence. Under a
1994 court ruling, proof of an offender's force, violence, or
threat could be admitted into a parole hearing through the
testimony of an expert evaluator (generally psychologists or
psychiatrists) relying on probation reports, DSH evaluations
and trial transcripts. This means the evidence could be
presented in an MDO parole hearing without prosecutors
re-victimizing crime victims.
"A 2015 California Supreme Court decision overturned the
allowance of expert testimony. Since then, expert testimony
based on documentary evidence could not be used to prove the
force, violence, or threat of an MDO's prior crime during a
parole hearing. This poses a problem because it forces the
prosecution to choose between victim "re-victimization" and
holding a hearing without full evidence. The absence of this
testimony could lead to the release of a parolee who with full
evidence would be shown to be an MDO. Consequently,
prosecutors are put in a tough place during an MDO parole
hearing: ask a victim to relive a traumatic experience, or
risk releasing a dangerous person who requires in-patient
treatment.
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"Fortunately, in its opinion, the California Supreme Court paved
the way for a solution. The ruling acknowledged that the
Legislature is free to create exceptions to the rules of
evidence as it has done in the SVP (Sexually Violent Predator)
context. SB 1295 is that solution. This bill will protect
victims in two ways - by relieving them of the obligation to
provide traumatic testimony in a parole hearing, and by
helping to prevent the release of dangerous offenders. This
bill will allow all evidence to be considered by allowing
documentary evidence to play a role in the parole hearings of
mentally disordered offenders.
2)Background on the Mentally Disordered Offender Act (Pen. Code
§ 2960 et seq.): A MDO commitment is a post-prison civil
commitment. The MDO Act is designed to confine as mentally
ill an inmate who is about to be released on parole when it is
deemed that he or she has a mental illness which contributed
to the commission of a violent crime. Rather than release the
inmate to the community, CDCR paroles the inmate to the
supervision of the state hospital, and the individual remains
under hospital supervision throughout the parole period. The
MDO law actually addresses treatment in three contexts -
first, as a condition of parole (Pen. Code, § 2962); then, as
continued treatment for one year upon termination of parole
(Pen. Code § 2970); and, finally, as an additional year of
treatment after expiration of the original, or previous,
one-year commitment (Pen. Code § 2972). (People v. Cobb
(2010) 48 Cal.4th 243, 251.)
Penal Code section 2962 lists six criteria that must be proven
for an initial MDO certification, namely, whether: (1) the
inmate has a severe mental disorder; (2) the inmate used force
or violence in committing the underlying offense; (3) the
severe mental disorder was one of the causes or an aggravating
factor in the commission of the offense; (4) the disorder is
not in remission or capable of being kept in remission without
treatment; (5) the inmate was treated for the disorder for at
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least 90 days in the year before the inmate's release; and (6)
by reason of the severe mental disorder, the inmate poses a
serious threat of physical harm to others. (Pen. Code § 2962,
subds. (a)-(d); People v. Cobb, supra, 48 Cal.4th at p.
251-252.)
The initial determination that the inmate meets the MDO criteria
is made administratively. The person in charge of treating
the prisoner and a practicing psychiatrist or psychologist
from the DSH will evaluate the inmate. If it appears that the
inmate qualifies, the chief psychiatrist then will certify to
the Board of Parole Hearings (BPH) that the prisoner meets the
criteria for an MDO commitment
The inmate may request a hearing before BPH to require proof
that he or she is an MDO. If BPH determines that the
defendant is an MDO, the inmate may file, in the superior
court of the county in which he or she is incarcerated or is
being treated, a petition for a jury trial on whether he or
she meets MDO criteria. The jury must unanimously agree
beyond a reasonable doubt that the inmate is an MDO. If the
jury, or the court if a jury trial is waived, reverses the
determination of BPH, the court is required to stay the
execution of the decision for five working days to allow for
an orderly release of the prisoner.
MDO treatment must be on an inpatient basis, unless there is
reasonable cause to believe that the parolee can be safely and
effectively treated on an outpatient basis. But if the
parolee can no longer be safely and effectively treated in an
outpatient program, he or she may be taken into custody and
placed in a secure mental health facility. An MDO commitment
is for one year; however, the commitment can be extended.
(Pen. Code § 2972, subd. (c).) When the individual is due to
be released from parole, the state can petition to extend the
MDO commitment for another year. The state can file
successive petitions for further extensions, raising the
prospect that, despite the completion of a prison sentence,
the MDO may never be released. The trial for each one-year
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commitment is done according to the same standards and rules
that apply to the initial trial.
3)Evidence That the Parolee's Crime of Commitment Involved Force
or Violence, or There Was an Express or Implied Threat of
Force or Violence: The determination whether the inmate
committed a qualifying violent crime is essentially a
formality if he or she was convicted of an offense specified
in the governing statute. These include voluntary
manslaughter, robbery in which the inmate personally used a
weapon, forced or coerced sex crimes and others. (Pen. Code,
§ 2962, subd. (e)(2)(A)-(O).) Proof of the violent nature of
a crime is less clear if it is based on the defendant's
conduct in any felony "in which the prisoner used force or
violence, or caused serious bodily injury? or made a credible
threat to cause "substantial physical harm?." (Id., at
subparagraphs (P)-(Q).)
4)California Supreme Court Decision Barring Hearsay by an Expert
to Establish That an Alleged MDO Committed a Qualifying
Violent Crime: As a matter of practice, prosecuting attorneys
were using the testimony of mental health expert witnesses to
establish the criteria of force/violence or threat of
force/violence in the underlying offense during contested MDO
proceedings. In 2015, that practice came to a halt when the
California Supreme Court held that hearsay from a mental
health expert witness is not admissible to prove the
underlying facts of the conviction. (People v. Stevens (2015)
62 Cal.4th 325.)
In reaching that holding the Supreme Court stated:
We conclude that in a commitment hearing under the MDO Act,
the People may not prove the facts underlying the
commitment offense (that are necessary to establish the
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qualifying offense) through a mental health expert's
opinion testimony. (Id., at p. 338.)
Having made that ruling the Supreme Court went on to note, " .
. . that the Legislature is free to create exceptions to the
rules of evidence as it has done in the SVP context."
The purpose of this bill is to create the evidentiary
exception to which the Stevens court referred.
5)This Bill Creates and Evidentiary Exception to Allow
Documentary Evidence to Be Admitted to Establish Use of Force
or Violence, Causing Serious Bodily Injury, or the Threat to
Use Force of Violence Likely to Produce Substantial Physical
Harm. This bill does not limit the type of documentary
evidence that a court may admit to establish that the
underlying crime involved the use of force or violence,
causing serious bodily injury or the threat to use force or
violence to produce substantial physical harm.
While not limiting the documentary evidence, the language of
this bill indicates that the documentary evidence may include,
probation and sentencing reports, and evaluations by the
Department of State Hospitals. Documents such as probation
reports or evaluations by the Department of State Hospitals
can include allegations that were not admitted by the
defendant during the criminal proceeding and were not
reflected in the charge or charges to which the defendant was
ultimately convicted. If such documentary evidence is
admitted to establish the required criteria, the defendant has
no opportunity for cross examination, because there is no
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witness. Such evidence is the functional equivalent of the
hearsay testimony from mental health experts that the Supreme
Court disallowed in Stevens, supra.
The facts of the Stevens case illustrate some potential concerns
about the use of documentary evidence to establish the
underlying facts of the case. In Stevens, the defendant was
sentenced to prison for a felony petty theft case. Before the
defendant's release on parole, the Department of Corrections
and Rehabilitation certified him as an MDO. As part of the
basis for his continued commitment as the MDO was a finding
that his crime involved an express or implied threat of force
or violence. The defendant challenged his continued
commitment in court and had a trial to determine the issue.
At the trial, Dr. Perry a clinical psychologist at Atascadero
State Hospital testified that he had conducted a forensic exam
of the defendant. Dr. Perry testified that he relied on
defendant's probation officer's report to describe the
circumstances of the petty theft offense. Based on the
probation officer's report, Dr. Perry testified that defendant
had placed several items from a drugstore into his waistband
and pockets, before walking out of the store without paying.
Dr. Perry testified based on the probation report that when
confronted by loss prevention officers, the defendant
purported threatened to assault and kill them. Dr. Perry went
on to testify that he also tried to push a shopping cart into
one of them.
In the Stevens case, the defendant was convicted of petty theft.
In that case, there was no judicial fact determination that
the defendant had made a threat of violence or committed
violence as part of the offense. Petty theft with a prior is
not inherently a crime of force or violence.
This bill would allow the probation report to be admitted into
evidence to establish the facts that the court had disallowed
Dr. Perry to testify. However, the same due process concerns
exist whether the document itself is introduced, or a witness
recites from the document. In either case, the individual
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against whom the information is introduced does not have the
ability to cross examine to test the legitimacy of the
information. In either case, the fact finder is not able to
evaluate the credibility of the witness that purportedly
observed the conduct.
It is appropriate to consider whether the convenience of
allowing the introduction of documentary evidence to establish
the nature of an underlying crime outweighs the due process
concern of providing an individual a meaningful opportunity to
confront the evidence against them.
6)As Proposed to be Amended in Committee: The proposed
amendments to be adopted in committee delete language which
would have created a rebuttable presumption that the
individual had been treated from 90 days or more within the
last year, based on a certified copy of the chief
psychiatrist's certification. Existing law already allows
such records to be admitted as evidence to establish that the
MDO candidate has received 90 days of treatment within the
past year.
7) Argument in Support: According to The California District
Attorney's Association, "As you know, the Mentally Disordered
Offender Act, found in Penal Code sections 2960 et seq.,
provides for the civil commitment of a parolee to a Department
of State Hospitals (DSH) facility for treatment of a mental
disorder. After certification of MDO status by a Chief
Psychiatrist of the CA Department of Corrections and
Rehabilitation (CDCR), the parolee receives a hearing before
the Board of Parole Hearings (BPH) regarding whether he/she
fits the six MDO criteria found in PC 2962. The parolee may
challenge the BPH finding by filing a petition in the Superior
Court of the county in which he/she is housed or treated, for
a hearing on whether he/she fits the six MDO criteria.
"One of the six MDO criteria requires that the People prove
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beyond a reasonable doubt that the parolee was sentenced for a
crime listed in PC 2962(e)(2)(A) through (O); or a crime in
which the parolee used force or violence or caused serious
bodily injury [PC 2962(e)(2)(P)]; or a crime that involved a
threat of force or violence [PC 2962(e)(2)(Q)].
"Prior to the California Supreme Court's ruling in People v.
Stevens (2015) 62 Cal.4th 325, issued on December 10, 2015,
the People relied on the holding in People v. Miller (1994) 25
Cal.App.4th 913 that allowed proof of the
force/violence/threat criteria through the testimony of an
expert (psychologist or psychiatrist) evaluator. As the
Stevens court describes, 'The (Miller) court opined that
before Miller, prosecutors essentially 'revictimized crime
victims by having them testify in defendants' MDO hearings
about the acts committed against them.'
"Stevens overruled Miller and approved People v. Baker (2012)
204 Cal.App.4th 1234, ruling that the People may not prove the
force/violence/threat criteria through the testimony of an
expert relying on hearsay in the form of a probation report,
etc. Stevens thus forces the prosecution to choose between the
"revictimization" avoided by Miller, or the release of a
parolee who actually fits the MDO criteria and represents a
serious threat of danger to others.
"The Stevens court did, however, invite a legislative fix in its
conclusion where it notes that 'the Legislature is free to
create exceptions to the rules of evidence as it has done in
the SVP (Sexually Violent Predator) context.'
"This legislation takes the court up on its offer, and is
necessary to avoid the Hobson's choice of victim
'revictimization' or the release of dangerous persons who
require in-patient treatment.
"As noted by the Stevens court, a similar exception was created
in the SVP context back in 1996. They are referring to
subdivision (a)(3) of Section 6600 of the Welfare and
Institutions Code, which allows prosecutors to prove the
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existence of prior convictions with documentary evidence,
including trial transcripts, probation reports, and
evaluations by DSH. This bill would simply provide similar
language for MDOs."
8)Prior Legislation:
a) SB 279 (Dunn) Chapter 16, Statutes of 1999, added to the
list of crimes a crime in which the perpetrator expressly
or impliedly threatened another with the use of force or
violence likely to produce substantial physical harm in
such a manner that a reasonable person would believe and
expect that the force or violence would be used.
b) SB 34 (Peace) Chapter 761, Statutes of 1995, required
that the defendant have received a determinate sentence for
the crime to be determined an MDO. Expanded the crimes to
which this provision applies to include, among others, lewd
and lascivious acts on a child under the age of 14 years
and arson.
REGISTERED SUPPORT / OPPOSITION:
Support
California District Attorneys Association (Sponsor)
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Crime Victims United of California
Opposition
None
Analysis Prepared by:David Billingsley / PUB. S. / (916)
319-3744