BILL ANALYSIS                                                                                                                                                                                                    



                                                                    
   AB 888
                                                         Page 1


                 CONCURRENCE IN SENATE AMENDMENTS

         AB 888 (Rogan) - As Amended:  September 12, 1995

 ASSEMBLY VOTE:  67-0 (June 2, 1995) SENATE VOTE:  36-0 (September  
14, 1995)

Original Committee Reference:   PUB. S.

 DIGEST

 Existing law provides for the continued treatment of mentally  
disordered prisoners when they are released to parole. 

 As passed by the Assembly, this bill: 

 1) Created a civil commitment process for sexually violent  
    predators, as defined.

 2) Defined a sexually violent predator as 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,  
    shall constitute evidence that may support a court or jury  
    determination that the person is a sexually violent predator,  
    but shall not be the sole basis for the determination.

 3) Defined sexually violent offense to mean the following  
    offenses: Penal Code sections 261(a)(2) (forcible rape);  
    262(a)(1) (forcible spousal rape); 264.1 (rape in concert);  
    286 (sodomy); 288(a) or (b) (lewd or lascivious act with a  
    child under age 14, with or without force); 288a (oral  
    copulation), which results in conviction and a determinate  
    sentence.

 4) Provided that whenever the Director of Corrections determines  











                                                                    
   AB 888
                                                         Page 2

    that an individual, who is under the jurisdiction of the  
    California Department of Corrections (CDC), may be a sexually  
    violent predator, the director shall, at least six-months  
    prior to that individual's scheduled date of release from  
    prison or termination of parole, refer that person for  
    evaluation, as specified.

 5) Provided that the potential sexually violent predator shall be  
    screened by the CDC 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.  The screening shall be in accordance  
    with a structured screening instrument.  If, as a result of  
    this screening, it is determined that the person is likely to  
    be a sexually violent predator, the CDC shall refer the person  
    to the Department of Mental Health (DMH) for a full  
    evaluation. 

 6) Provided that the DMH shall evaluate the person in accordance  
    with a standardized assessment protocol, which shall be  
    developed and updated by the DMH.  This protocol shall require  
    assessment of mental abnormalities and personality disorders,  
    as well as other factors associated with the risk of  
    re-offense among sex offenders.  Specifies evaluation  
    procedure.  Where the DMH determines that the person is a  
    sexually violent predator, the Director of DMH shall initiate  
    the commitment process.  Copies of the evaluation reports and  
    any other supporting documents shall be made available to the  
    attorney designated by the county who may file a petition for  
    commitment.

 7) Provided that the 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 CDC's  
    jurisdiction.  The petition shall be filed, and the  
    proceedings shall be handled, by either the district attorney  
    or the county counsel.

 8) Provided that the time limits set forth in Welfare and  
    Institutions Code section 6601 shall not apply during the  











                                                                    
   AB 888
                                                         Page 3

    first year that this article is operative.  

 9) Provided that a superior court judge shall review the petition  
    and shall determine whether there is probable cause to believe  
    the individual is likely to engage in sexual violent predatory  
    criminal behavior upon his or her release.  If probable cause  
    exists, then the judge shall order that a trial be conducted.

10) Provided that persons subject to this provision 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.   
    Indigents shall have counsel appointed for them, and upon the  
    person's request, be given assistance in obtaining experts.  

11) Provided that the attorney petitioning for commitment shall  
    have the right to demand a jury trial.  If no demand is made  
    by either party, the trial shall be before the court without a  
    jury.  In any jury trial, a unanimous verdict is required.

12) Provided for the commitment of a sexually violent predator for  
    two years.  The sexually violent predator is committed to a  
    secure mental state hospital only after a court or jury has  
    found, beyond a reasonable doubt, that he or she is a sexually  
    violent predator.  The sexually violent predator shall be  
    committed to the custody of the DMH.  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 filling of a new petition for commitment.   
    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.  The  
    facility shall be located on the grounds of an institution  
    under the jurisdiction of the CDC.

13) Provided that a person found to be a sexually violent predator  
    and committed to the custody of the DMH shall have a current  
    examination of his or her mental condition made at least once  
    every year.  The person may retain, or the court may appoint a  











                                                                    
   AB 888
                                                         Page 4

    qualified expert to examine him or her.  

14) Provided that the committed person shall receive an annual  
    written notice of his or her right to petition the court for  
    conditional release.  If the person does not affirmatively  
    waive his or her right to petition the court, 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 has a  
    right to be present and to have an attorney represent him or  
    her at the show cause hearing.  Where the court or jury rules  
    against the committed person at the show cause hearing, the  
    term of commitment of the person shall run for a period of two  
    years from the date of the ruling.  If the court or the jury  
    rules for the committed person, he or she shall be  
    unconditionally released and unconditionally discharged.

15) Required that the person who is committed be provided with  
    programming by the DMH.  The DMH shall provide the person with  
    treatment for his or her diagnosed disorder.  The programming  
    provided by the DMH 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 DMH.  

16) Provided that the Director of DMH can recommend conditional  
    release upon determination that the person's diagnosed mental  
    disorder has so changed that he or she is not likely to commit  
    acts of predatory sexual violence.  Also, persons who have  
    been committed as a sexually violent predator may petition the  
    court for conditional release and subsequent unconditional  
    discharge without the recommendation or concurrence of the the  
    Director of DMH.  Review of petition shall be undertaken by  
    the court.

17) Set forth legislative findings, as specified.

 The Senate amendments:












                                                                    
   AB 888
                                                         Page 5

 1) Make technical and clarifying changes.

 2) Delete provision that required that the probable cause hearing  
    to be held within 72 hours of being taken bake into custody.   
    The Senate amendments also deleted the provision that provides  
    that 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.

 3) Provide that if the court or jury rules for the committed  
    person, he or she shall be unconditionally released and  
    unconditionally discharged.

 4) Provide that 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, as specified,  
    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.

 FISCAL EFFECT

According to the Assembly Appropriations Committee analysis, major  
costs to the General Fund for CDC and the Board of Prison Terms to  
perform evaluations and to the DMH for commitment.  Unknown costs  
to local government for district attorneys or county counsels to  
file and handle proceedings relating to commitment.  Since this  
bill provides no new or expanded crime, costs incurred by local  
government would be reimbursable from the State Mandate Claims  
Fund as determined by the Commission on State Mandates.

 COMMENTS

Under current law, there is no legal authority to detain and treat  











                                                                    
   AB 888
                                                         Page 6

sexually violent offenders who are likely to commit new offenses  
because of their mental abnormality and defects.  There is no  
procedure to prevent the release into unsuspecting communities of  
sexually violent offenders who have completed their prison  
sentences.  SB 1143 establishes civil commitment procedures for  
the placement and treatment of sexually violent offenders in a  
secure mental health facility following their release from prison.  


According to CDC, there are approximately 11,000 sex offenders  
currently in prison.  Approximately 3,000 of these offenders are  
released per year; and under current law, there is no legal  
authority to postpone these releases when there is a likelihood  
that the offender will commit another violent crime.  



 Analysis prepared by:  Martin Gonzalez / apubs / 445-3268

            
                                                                    
              FN 020739