BILL NUMBER: AB 888	ENROLLED
	BILL TEXT

	PASSED THE ASSEMBLY   SEPTEMBER 15, 1995
	PASSED THE SENATE   SEPTEMBER 14, 1995
	AMENDED IN SENATE   SEPTEMBER 12, 1995
	AMENDED IN SENATE   JULY 17, 1995
	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, Margett, and
Rainey)
   (Principal coauthors:  Senators Mountjoy and Peace)
   (Coauthor:  Senator Johnston)

                        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, 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 in custody under the
jurisdiction of the Department of Corrections, and who is either
serving a determinate sentence or whose parole has been revoked, may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,
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 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
diagnosed mental 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 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  have
diagnosable mental 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 while these
individuals have been duly punished for their criminal acts, they
are, if adjudicated sexually violent predators, a continuing threat
to society.  The continuing danger posed by these individuals and the
continuing basis for their judicial commitment is a currently
diagnosed mental disorder which predisposes them to engage in
sexually violent criminal behavior.  It is the intent of the
Legislature that these individuals be committed and treated for their
disorders only as long as the disorders persist and not for any
punitive purposes.
  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
diagnosed mental disorder that makes the person a danger to the
health and safety of others in that it is likely that he or she will
engage in sexually violent criminal behavior.
   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.  Jurors shall be
admonished that they may not find a person a sexually violent
predator based on prior offenses absent relevant evidence of a
currently diagnosed mental disorder that makes the person a danger to
the health and safety of others in that it is likely that he or she
will engage in sexually violent criminal behavior.
   (b) "Sexually violent offense" means the following acts when
committed by force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the victim or another person, and that
are committed on, before, or after the effective date of this article
and result 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.
   (c) "Diagnosed mental disorder" includes 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 in custody under the jurisdiction of the
Department of Corrections, and who is either serving a determinate
prison sentence or whose parole has been revoked, may be a sexually
violent predator, the director shall, at least six months prior to
that individual's scheduled date for release from prison, 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 diagnosable mental 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 mental 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 diagnosed mental 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 (i).  Copies of the evaluation reports and any other
supporting documents shall be made available to the attorney
designated by the county pursuant to subdivision (i) 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 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 (i).  Copies of the evaluation reports and any other
supporting documents shall be made available to the attorney
designated by the county pursuant to subdivision (i) who may file a
petition for commitment.
   (i) If the county's designated counsel concurs with the
recommendation, 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.
   (j) 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.  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 diagnosed mental 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, 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 sexually 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
diagnosed mental 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 (i) 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 demand a jury trial and
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
diagnosed mental 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.  If the court or jury rules for the committed
person, he or she shall be unconditionally released and
unconditionally discharged.
   (f) In the event that the State Department of Mental Health has
reason to believe that a person committed to it as a sexually violent
predator is no longer a sexually violent predator, it shall seek
judicial review of the person's commitment pursuant to the procedures
set forth in Section 7250 in the superior court from which the
commitment was made.  If the superior court determines that the
person is no longer a sexually violent predator, he or she shall be
unconditionally released and unconditionally 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 his or her
diagnosed mental 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 diagnosed mental 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 (i) 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) The court shall give notice of the hearing date to the
attorney designated in subdivision (i) 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.
   (c) 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.
   (d) 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 diagnosed mental 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 diagnosed mental 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 diagnosed
mental 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.
   (e) 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.
   (f) 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.
   (g) 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.
   (h) 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.
   (i) In any hearing authorized by this section, the petitioner
shall have the burden of proof by a preponderance of the evidence.
   (j) 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.
   (k) 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.