BILL NUMBER: AB 888 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 31, 1995
AMENDED IN ASSEMBLY APRIL 25, 1995
AMENDED IN ASSEMBLY APRIL 17, 1995
INTRODUCED BY Assembly Members Rogan and Hoge
(Coauthors: Assembly Members Aguiar, Boland, Bowler, and Rainey)
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.
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 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) "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 criminal 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 (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.
(e) If one of the professionals performing the evaluation pursuant
to subdivision (d) does not concur that the person meets the
criteria specified in subdivision (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
(g).
(f) If an examination by independent professionals pursuant to
subdivision (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 (e) concur that the
person meets the criteria for commitment specified in subdivision
(d). The professionals selected to evaluate the person pursuant to
subdivision (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.
(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 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.
(i)
(h) 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.
(k) The time limits set forth in this section shall not apply
during the first year that this article is operative.
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. The
person named in the petition shall be entitled to assistance of
counsel at the probable cause hearing. In the case of a person taken
back into custody pursuant to subdivision (h) of Section 6601, the
hearing to determine probable cause shall take place within 72 hours
of the time that the person is taken back into custody. 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.
(e) In the case of a person taken back into custody pursuant to
subdivision (h) of Section 6601, the trial shall commence within 45
days of the time that the person is taken back into custody.
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, 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 (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 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 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 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 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. The person petitioning for conditional
release and unconditional discharge under this subdivision shall be
entitled to assistance of counsel.
(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 (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
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 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 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 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 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 committed person at the trial
for unconditional release from commitment, the court may place the
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
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 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 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.