BILL NUMBER: AB 888 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 17, 1995
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 amended, 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.
The bill would require the Department of Corrections and the
Board of Prison Terms to screen the person based on whether the
person has committed a sexually violent predatory offense and on a
review of the person's social, criminal, and institutional history
before referring the person to the State Department of Mental Health
for a full evaluation.
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 for 2 years 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 or while subject to the scrutiny of parole .
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
or while subject to the scrutiny of parole . 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,
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 against two or more
victims for which he or she received a determinate sentence 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 .
Conviction of one or more of the crimes enumerated in this section
shall constitute evidence that may support a court or jury
determination that a person is a sexually violent predator, but shall
not be the sole basis for the determination .
(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. this
article and resulting in a conviction and a determinate sentence: a
felony violation of paragraph (2) of subdivision (a) of Section 261,
paragraph (1) of subdivision (a) of Section 262, Section 264.1,
subdivision (a) or (b) of Section 288, or subdivision (a) of Section
289 of the Penal Code, or sodomy or oral copulation in violation of
Section 286 or 288a of the Penal Code by force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the victim
or another person.
(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
"Danger to the health and safety of others" does not require
proof of a recent overt act while the offender is in custody.
(e) "Predatory" means an act is directed toward a stranger or
individual with whom a relationship has been established or promoted
for the primary purpose of victimization.
(f) "Recent overt act" means any act that manifests a likelihood
that the actor may engage in sexually violent predatory criminal
behavior .
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 screened by the Department of
Corrections and the Board of Prison Terms based on whether the person
has committed a sexually violent predatory offense and on a review
of the person's social, criminal, and institutional history. This
screening shall be conducted in accordance with a structured
screening instrument developed and updated by the State Department of
Mental Health in consultation with the Department of Corrections.
If as a result of this screening it is determined that the person is
likely to be a sexually violent predator, the Department of
Corrections shall refer the person to the State Department of Mental
Health for a full evaluation of whether the person meets the criteria
in Section 6600.
(c) The State Department of Mental Health shall evaluate the
person in accordance with a standardized assessment protocol,
developed and updated by the State Department of Mental Health, to
determine whether the person is a sexually violent predator as
defined in this article. The standardized assessment protocol shall
require assessment of mental abnormalities and personality disorders,
as well as various factors known to be associated with the risk of
reoffense among sex offenders. Risk factors to be considered shall
include criminal and psychosexual history, type, degree, and duration
of sexual deviance, and severity of personality disorder.
(d) Pursuant to subdivision (c), 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)
(j) . 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)
(j) who may file a petition for commitment.
(c)
(e) If one of the professionals performing the evaluation
pursuant to subdivision (b) (d) does
not concur that the person meets the criteria specified in
subdivision (b) (d) , 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) (g) .
(d)
(f) If an examination by independent professionals pursuant
to subdivision (c) (e) 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) (e) concur that the
person meets the criteria for commitment specified in subdivision
(b) (d) . The professionals selected
to evaluate the person pursuant to subdivision (h)
(g) 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)
(g) 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.
(h) 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 predatory criminal
behavior if not evaluated and committed pursuant to this article. If
there is evidence of an a recent 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)
(i) If the State Department of Mental Health determines that the
person is a sexually violent predator as defined in this article, the
Director of Mental Health shall forward a request for a petition to
be filed for commitment under this article to the county designated
in subdivision (j). Copies of the evaluation reports and any other
supporting documents shall be made available to the attorney
designated by the county pursuant to subdivision (j) who may file a
petition for commitment.
(j) 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)
(k) The time limits set forth in subdivision (a)
and Section 6602 this section 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 predatory 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 for two years 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. , and the person
shall not be kept in actual custody longer than two years unless a
subsequent extended commitment is obtained from the court incident to
the filing of a new petition for commitment under this article or
unless the term of commitment changes pursuant to subdivision (e) of
Section 6605. Time spent on conditional release shall not count
toward the two-year term of commitment, unless the person is placed
in a locked facility by the conditional release program, in which
case the time in a locked facility shall count toward the two-year
term of commitment. 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) (j) 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.
(e) If the court or jury rules against the committed person at the
hearing conducted pursuant to subdivision (d), the term of
commitment of the person shall run for a period of two years from the
date of this ruling.
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.
(c) The programming provided by the State Department of Mental
Health in facilities shall be consistent with current institutional
standards for the treatment of sex offenders, and shall be based on a
structured treatment protocol developed by the State Department of
Mental Health. The protocol shall describe the number and types of
treatment components that are provided in the program, and shall
specify how assessment data will be used to determine the course of
treatment for each individual offender. The protocol shall also
specify measures that will be used to assess treatment progress and
changes with respect to the individual's risk of reoffense.
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 predatory
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.
director shall forward a report and recommendation
for conditional release in accordance with Section 6608 to the county
attorney designated in subdivision (j) of Section 6601, the attorney
of record for the person, and the committing court.
(b) When a report and recommendation for conditional release is
filed by the Director of Mental Health pursuant to subdivision (a),
the court shall set a hearing 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 committed person's condition had
not so changed that he or she would not be a danger to others in
that it is not likely that he or she will engage in sexually violent
criminal behavior 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 committed person
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 , unless the
community program director sooner makes a recommendation for
unconditional release as described in subdivision (g) .
(c) The court shall give notice of the hearing date to the
attorney designated in subdivision (f) (j)
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
committed would be 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 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 committed person 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 committed
person 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 in that it is not
likely that he or she will engage in sexually violent criminal
behavior . 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 committed
person 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
committed person . 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
committed person at the trial for unconditional release
from commitment, the court may place the petitioner
committed person 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
by the director of the 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
director of the treatment facility.
(l) Time 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 by 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.