BILL NUMBER: AB 888 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Rogan
FEBRUARY 22, 1995
An act to amend Section 6250 of, and to add Article 4 (commencing
with Section 6600) to Chapter 2 of Part 2 of Division 6 of, the
Welfare and Institutions Code, relating to sexual predators.
LEGISLATIVE COUNSEL'S DIGEST
AB 888, as introduced, Rogan. Sexually violent predators.
Existing law sets forth specified punishments for sex crimes,
including, among others, rape, sodomy, oral copulation, penetration
with a foreign object, and lewd and lascivious conduct.
This bill would provide that whenever the Director of Corrections
determines that an individual who is under the jurisdiction of the
Department of Corrections may be a sexually violent predator, he or
she shall, at least 6 months prior to that individual's scheduled
date for release from prison or termination of parole, refer the
person for evaluation and, under specified circumstances, request
that a petition for commitment be filed, and the proceedings be
handled, by either the district attorney or the county counsel of the
county in which the person was convicted of the offense for which he
or she is under the jurisdiction of the Department of Corrections.
This bill would impose a state-mandated local program by requiring
the district attorney or county counsel to file, and handle all
proceedings relating to, petitions for commitment.
This bill would set forth procedures and standards for the review
of the petition for commitment and would provide that a person who is
the subject of the petition is entitled to a trial by jury, the
assistance of counsel, the right to retain experts or professional
persons to perform an examination on his or her behalf, and access to
all relevant medical and psychological records and reports.
This bill would require a court or jury to determine whether,
beyond a reasonable doubt, the person is a sexually violent predator.
If the court or jury is not satisfied beyond a reasonable doubt
that the person is a sexually violent predator, the court would be
required to direct that the person be released at the conclusion of
the term for which he or she was initially sentenced, or that the
person be unconditionally released at the end of parole. If the
court or jury determines that the person is a sexually violent
predator, the person would be committed to the custody of the State
Department of Mental Health for appropriate treatment and confinement
in a secure facility designated by the Director of Mental Health
that is located on the grounds of an institution under the
jurisdiction of the Department of Corrections until his or her mental
abnormality or personality disorder has so changed that he or she is
not likely to commit an act of sexual violence.
This bill would require annual evaluations of those individuals
committed as sexually violent predators.
The bill also would set forth procedures and standards for
requesting and hearing petitions for conditional and unconditional
release.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares that a small but
extremely dangerous group of sexually violent predators that
generally have personality disorders can be identified while they are
incarcerated. These persons are not safe to be at large and if
released represent a danger to the health and safety of others in
that they are likely to engage in acts of sexual violence. The
Legislature further finds and declares that it is in the interest of
society to identify these individuals prior to the expiration of
their terms of imprisonment. It is the intent of the Legislature
that once identified, these individuals, if found to be likely to
commit acts of sexually violent criminal behavior beyond a reasonable
doubt, be confined and treated until such time that it can be
determined that they no longer present a threat to society.
The Legislature further finds and declares that the treatment
needs of this population are very long term and the treatment
modalities that are appropriate for this population are substantially
different from those persons currently receiving mental health
treatment under the Lanterman-Petris-Short Act (Part 1 (commencing
with Section 5000) of Division 5 of the Welfare and Institutions
Code) and, accordingly, a new civil commitment needs to be
established to address the treatment needs of this population.
SEC. 2. Section 6250 of the Welfare and Institutions Code is
amended to read:
6250. As used in this part, "persons subject to judicial
commitment" means persons who may be judicially committed under this
part as mentally disordered sex offenders pursuant to Article 1
(commencing with Section 6300) , sexually violent predators
pursuant to Article 4 (commencing with Section 6600), or
mentally retarded persons pursuant to Article 2 (commencing with
Section 6500) of Chapter 2 of this part.
Nothing in this part shall be held to change or interfere with the
provisions of the Penal Code and other laws relating to mentally
disordered persons charged with crime or to the criminally insane.
This part shall be liberally construed so that, as far as possible
and consistent with the rights of persons subject to commitment,
such those persons shall be treated,
not as criminals, but as sick persons.
SEC. 3. Article 4 (commencing with Section 6600) is added to
Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions
Code, to read:
Article 4. Sexually Violent Predators
6600. As used in this article, the following terms have the
following meanings:
(a) "Sexually violent predator" means a person who has been
convicted of a sexually violent offense and who has a mental
abnormality or personality 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 upon release from
state prison.
(b) "Sexually violent offense" means the following acts committed
on, before, or after the effective date of this article: a felony
violation of Section 261, 262, or 264.1, subdivision (c), (d), (f),
(g), (i), (j), or (k) of Section 286, subdivision (c), (d), (f), (g),
(i), (j), or (k) of Section 288a, Section 288.5, subdivision (a),
(b), (d), (e), (f), (g), or (j) of Section 289, or Section 289.5 of
the Penal Code, where the violation is accomplished against a person'
s will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the person or another, or
where the victim is under 14 years of age, or a felony violation of
Section 288 of the Penal Code, whenever one or more of the following
circumstances is true:
(1) The person has been previously convicted of any felony offense
specified in Section 261, 262, 264.1, 286, 288a, 288.5, 289, or
289.5 of the Penal Code, including any conviction that qualifies
under Section 668 of the Penal Code, where the violation is
accomplished against a person's will by means of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on
the person or another, or where the victim is under 14 years of age,
or a felony violation of Section 288 of the Penal Code.
(2) The person kidnapped the victim in violation of Section 207,
208, or 209 of the Penal Code.
(3) The person inflicted great bodily injury on the victim or
another person during the commission of the offense in violation of
Section 12022.7 or 12022.8 of the Penal Code.
(4) The person committed the offense during the commission of a
burglary in violation of Section 459 of the Penal Code.
(5) The person used a deadly or dangerous weapon or firearm in the
commission of the offense.
(6) The person is convicted of committing any offense specified in
this subdivision against more than one victim, of committing more
than one of the offenses specified in this subdivision against a
victim who is under 14 years of age, or of committing a felony
violation of Section 288 of the Penal Code.
(c) "Mental abnormality" means a congenital or acquired condition
affecting the emotional or volitional capacity that predisposes the
person to the commission of criminal sexual acts in a degree
constituting the person a menace to the health and safety of others.
(d) As used in this article, "danger to the health and safety of
others" does not require proof of a recent overt act.
6601. (a) Whenever the Director of Corrections determines that an
individual who is under the jurisdiction of the Department of
Corrections may be a sexually violent predator, the director shall,
at least six months prior to that individual's scheduled date for
release from prison or termination of parole, whichever is
applicable, refer the person for evaluation in accordance with this
section.
(b) The person shall be evaluated by two practicing psychiatrists
or psychologists, or one practicing psychiatrist and one practicing
psychologist, designated by the Director of Mental Health. If both
evaluators concur that the person has a mental abnormality or
personality disorder such that he or she is likely to engage in acts
of sexual violence without appropriate treatment and custody, the
Director of Mental Health shall forward a request for a petition for
commitment under Section 6602 to the county designated in subdivision
(f). Copies of the evaluation reports and any other supporting
documents shall be made available to the attorney designated by the
county pursuant to subdivision (f) who may file a petition for
commitment.
(c) If one of the professionals performing the evaluation pursuant
to subdivision (b) does not concur that the person meets the
criteria specified in subdivision (b), but the other professional
concludes that the person meets those criteria, the Director of
Mental Health shall arrange for further examination of the person by
two independent professionals selected in accordance with subdivision
(h).
(d) If an examination by independent professionals pursuant to
subdivision (c) is conducted, a petition to request commitment under
this article shall only be filed if both independent professionals
who evaluate the person pursuant to subdivision (c) concur that the
person meets the criteria for commitment specified in subdivision
(b). The professionals selected to evaluate the person pursuant to
subdivision (h) shall inform the person that the purpose of their
examination is not treatment but to determine if the person meets
certain criteria to be involuntarily committed pursuant to this
article. It is not required that the person appreciate or understand
that information.
(e) If the person being evaluated for commitment under this
article is not currently in custody, evidence shall be shown that the
person committed a recent overt act that indicates that he or she is
likely to engage in sexually violent criminal behavior if not
evaluated and committed pursuant to this article. If there is
evidence of an overt act by a person not currently in custody, the
Director of Corrections may cause the person to be brought into
custody and placed in a facility designated by the Director of Mental
Health to facilitate evaluation and treatment and to ensure public
safety. The facility shall be located on the grounds of an
institution under the jurisdiction of the Department of Corrections.
(f) A petition for commitment shall be filed in the superior court
of the county in which the person was convicted of the offense for
which he or she is under the jurisdiction of the Department of
Corrections. The petition shall be filed, and the proceedings shall
be handled, by either the district attorney or the county counsel of
that county. The county board of supervisors shall designate either
the district attorney or the county counsel to assume responsibility
for proceedings under this article.
(g) The time limits set forth in subdivision (a) and Section 6602
shall not apply during the first year that this article is operative.
(h) Any independent professional who is designated by the Director
of Corrections or the Director of Mental Health for purposes of this
section shall not be a state government employee, shall have at
least five years of experience in the diagnosis and treatment of
mental disorders, and shall include psychiatrists and licensed
psychologists who have a doctoral degree in psychology. The
requirements set forth in this section also shall apply to any
professionals appointed by the court to evaluate the person for
purposes of any other proceedings under this article.
6602. A judge of the superior court shall review the petition and
shall determine whether there is probable cause to believe that the
individual named in the petition is likely to engage in sexually
violent criminal behavior upon his or her release. If the judge
determines there is not probable cause, he or she shall dismiss the
petition. If the judge determines that there is probable cause, the
judge shall order that a trial be conducted to determine whether the
person is, by reason of mental abnormality or personality disorder, a
danger to the health and safety of others in that the person is
likely to engage in acts of sexual violence upon his or her release
from the jurisdiction of the Department of Corrections.
6603. (a) A person subject to this article shall be entitled to a
trial by jury, the assistance of counsel, the right to retain
experts or professional persons to perform an examination on his or
her behalf, and have access to all relevant medical and psychological
records and reports. In the case of a person who is indigent, the
court shall appoint counsel to assist him or her, and, upon the
person's request, assist the person in obtaining an expert or
professional person to perform an examination or participate in the
trial on the person's behalf.
(b) The attorney petitioning for commitment under this article
shall have the right to demand that the trial be before a jury.
(c) If no demand is made by the person subject to this article or
the petitioning attorney, the trial shall be before the court without
jury.
(d) A unanimous verdict shall be required in any jury trial.
6604. The court or jury shall determine whether, beyond a
reasonable doubt, the person is a sexually violent predator. If the
court or jury is not satisfied beyond a reasonable doubt that the
person is a sexually violent predator, the court shall direct that
the person be released at the conclusion of the term for which he or
she was initially sentenced, or that the person be unconditionally
released at the end of parole, whichever is applicable. If the court
or jury determines that the person is a sexually violent predator,
the person shall be committed to the custody of the State Department
of Mental Health for appropriate treatment and confinement in a
secure facility designated by the Director of Mental Health until his
or her mental abnormality or personality disorder has so changed
that he or she is not likely to commit an act of sexual violence.
The facility shall be located on the grounds of an institution under
the jurisdiction of the Department of Corrections.
6605. (a) A person found to be a sexual violent predator and
committed to the custody of the State Department of Mental Health
shall have a current examination of his or her mental condition made
at least once every year. The person may retain, or if he or she is
indigent and so requests, the court may appoint, a qualified expert
or professional person to examine him or her, and the expert or
professional person shall have access to all records concerning the
person.
(b) The director shall provide the committed person with an annual
written notice of his or her right to petition the court for
conditional release under Section 6608. The notice shall contain a
waiver of rights. The director shall forward the notice and waiver
form to the court with the annual report. If the person does not
affirmatively waive his or her right to petition the court for
conditional release, the court shall set a show cause hearing to
determine whether facts exist that warrant a hearing on whether the
person's condition has so changed that he or she would not be a
danger to the health and safety of others if discharged. The
committed person shall have the right to be present and to have an
attorney represent him or her at the show cause hearing.
(c) If the court at the show cause hearing determines that
probable cause exists to believe that the committed person's mental
abnormality or personality disorder has so changed that he or she is
not a danger to the health and safety of others and is not likely to
engage in sexually violent criminal behavior if discharged, then the
court shall set a hearing on the issue.
(d) At the hearing, the committed person shall have the right to
be present and shall be entitled to the benefit of all constitutional
protections that were afforded to him or her at the initial
commitment proceeding. The attorney designated by the county
pursuant to subdivision (f) of Section 6601 shall represent the state
and shall have the right to demand a jury trial and to have the
committed person evaluated by experts chosen by the state. The
committed person also shall have the right to have experts evaluate
him or her on his or her behalf. The court shall appoint an expert
if the person is indigent and requests an appointment. The burden of
proof at the hearing shall be on the state to prove beyond a
reasonable doubt that the committed person's mental abnormality or
personality 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 criminal behavior if discharged.
6606. (a) A person who is committed under this article shall be
provided with programming by the State Department of Mental Health
which shall afford the person with treatment for the underlying
causes of his or her mental abnormality or personality disorder.
(b) Amenability to treatment is not required for a finding that
any person is a person described in Section 6600, nor is it required
for treatment of that person. Treatment does not mean that the
treatment be successful or potentially successful, nor does it mean
that the person must recognize his or her problem and willingly
participate in the treatment program.
6607. (a) If the Director of Mental Health determines that the
person's mental abnormality or personality disorder has so changed
that the person is not likely to commit acts of sexual violence while
under supervision and treatment in the community, the director shall
forward to the county attorney designated in subdivision (f) of
Section 6601 a request for the attorney to petition the court for
conditional release.
(b) When a petition for conditional release is filed at the
request of the Director of Mental Health, the court shall hear the
petition in accordance with the procedures set forth in Section 6608.
6608. (a) Nothing in this article shall prohibit the person who
has been committed as a sexually violent predator from petitioning
the court for conditional release and subsequent unconditional
discharge without the recommendation or concurrence of the Director
of Mental Health. If a person has previously filed a petition for
conditional release without the concurrence of the director and the
court determined, either upon review of the petition or following a
hearing, that the petition was frivolous or that the petitioner's
condition had not so changed that he or she would not be a danger to
others if placed under supervision and treatment in the community,
then the court shall deny the subsequent petition unless it contains
facts upon which a court could find that the condition of the
petitioner had so changed that a hearing was warranted. Upon receipt
of a first or subsequent petition from a committed person without
the concurrence of the director, 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.
(b) In no event shall a person who is committed pursuant to this
article be unconditionally released from commitment until he or she
has been placed in the community under supervision and observation
pursuant to this section for at least one year.
(c) The court shall give notice of the hearing date to the
attorney designated in subdivision (f) of Section 6601, the retained
or appointed attorney for the committed person, and the Director of
Mental Health at least 15 court days before the hearing date.
(d) No hearing upon the petition shall be held until the person
who is committed has been under commitment for confinement and care
in a facility designated by the Director of Mental Health for not
less than one year from the date of the order of commitment.
(e) The court shall hold a hearing to determine whether the person
petitioning for conditional release would be a danger to the health
and safety of others due to his or her mental abnormality or
personality disorder if under supervision and treatment in the
community. If the court at the hearing determines that the
petitioner would not be a danger to others due to his or her mental
abnormality or personality disorder while under supervision and
treatment in the community, the court shall order the petitioner
placed with an appropriate forensic conditional release program
operated by the state for one year. A substantial portion of the
state-operated forensic conditional release program shall include
outpatient supervision and treatment. The court shall retain
jurisdiction of the person throughout the course of the program. At
the end of one year, the court shall hold a hearing to determine if
the person should be unconditionally released from commitment on the
basis that, by reason of a mental abnormality or personality
disorder, he or she is not a danger to the health and safety of
others. The court shall not make this determination until the person
has completed at least one year in the state-operated forensic
conditional release program. The court shall notify the Director of
Mental Health of the hearing date.
(f) Before placing a petitioner in a state-operated forensic
conditional release program, the community program director
designated by the State Department of Mental Health shall submit a
written recommendation to the court stating which forensic
conditional release program is most appropriate for supervising and
treating the petitioner. If the court does not accept the community
program director's recommendation, the court shall specify the reason
or reasons for its order on the record. The procedures described in
Sections 1605 to 1610, inclusive, of the Penal Code shall apply to
the person placed in the forensic conditional release program.
(g) If the court determines that the person should be transferred
to a state-operated forensic conditional release program, the
community program director, or his or her designee, shall make the
necessary placement arrangements and, within 21 days after receiving
notice of the court's finding, the person shall be placed in the
community in accordance with the treatment and supervision plan
unless good cause for not doing so is presented to the court.
(h) If the court rules against the petitioner at the trial for
unconditional release from commitment, the court may place the
petitioner on outpatient status in accordance with the procedures
described in Title 15 (commencing with Section 1600) of Part 2 of the
Penal Code.
(i) If the court denies the petition to place the person in an
appropriate forensic conditional release program or if the petition
for unconditional discharge is denied, the person may not file a new
application until one year has elapsed from the date of the denial.
(j) In any hearing authorized by this section, the petitioner
shall have the burden of proof by a preponderance of the evidence.
(k) If the petition for conditional release is not made by the
medical director of the state hospital or other treatment facility to
which the person is committed, no action on the petition shall be
taken by the court without first obtaining the written recommendation
of the medical director of the state hospital or other treatment
facility.
(lTime spent in a conditional release program pursuant to this
section shall not count toward the term of commitment under this
article unless the person is confined in a locked facility during a
portion of the conditional release program, in which case the time
spent in a locked facility shall count toward the term of commitment.
SEC. 4. Notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
costs mandated by the state, reimbursement to local agencies and
school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code. If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.