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
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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
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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
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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:
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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
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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
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