BILL ANALYSIS                                                                                                                                                                                                    



SENATE RULES COMMITTEE
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                    UNFINISHED BUSINESS
                                                              
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Bill No:  SB 1143
Author:   Mountjoy (R), et al
Amended:  9/12/95
Vote:     21
                                                              
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 SENATE CRIMINAL PROCEDURE COMMITTEE:  5-0, 4/25/95
AYES:  Beverly, Campbell, Kopp, Polanco, Boatwright
NOT VOTING:  Watson, Marks

 SENATE APPROPRIATIONS COMMITTEE:  13-0, 5/25/95
AYES:  Johnston, Alquist, Calderon, Dills, Greene, Kelley,  
  Killea, Leonard, Leslie, Lewis, Mello, Mountjoy, Polanco

 SENATE FLOOR:  32-0, 5/32/95
AYES:  Alquist, Ayala, Beverly, Boatwright, Calderon,  
  Campbell, Costa, Dills, Greene, Hayden, Haynes, Hurtt,  
  Johannessen, Johnston, Kelley, Leonard, Leslie, Lewis,  
  Lockyer, Maddy, Mello, Monteith, Mountjoy, O'Connell,  
  Peace, Petris, Polanco, Rogers, Russell, Solis, Thompson,  
  Wright
NOT VOTING:  Craven, Hughes, Johnson, Killea, Kopp, Marks,  
  Rosenthal, Watson

 ASSEMBLY FLOOR:  Not Available 
                                                              
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SUBJECT:    Sexually violent predators

 SOURCE:     City of Covina
                                                              
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DIGEST:    This bill makes various changes to existing law  
relative to sexually violent predators.
                                                     
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 Assembly Amendments delete and recast the entire bill and  
add coauthors.  The intent of the bill remains the same.

 ANALYSIS:    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parole has been revoked, may be a sexually violent  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  
                                                     
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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 bill contains the following definitions:

1."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 specified crimes 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.  

2."Sexually violent offense" means specified acts when  
  committed by force, violence, duress, menace, or fear of  
                                                     
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  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:  specified  
  felonies including, but not limited to, sodomy or oral  
  copulation.

 3."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.  

4."Danger to the health and safety of others" does not  
  require proof of a recent overt act while the offender is  
  in custody.  

5."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. 

6."Recent overt act" means any criminal act that manifests  
  a likelihood that the actor may engage in sexually  
  violent predatory criminal behavior.

 Prior Legislation

SB 41X (Presley) of 1994 passed the Senate 33-3 (noes:   
Alquist, Marks and Petris) but failed passage in the  
Assembly Public Safety Committee.

 FISCAL EFFECT:   Appropriation:  No   Fiscal Com.:  Yes    
Local:  No

 SUPPORT:   (Verified  5/30/95) (Unable to reverify Support  
  and Opposition at time of this writing)

City of Covina (source)
Association for Los Angeles Deputy Sheriffs, Inc.
Attorney General
Cities of Arcadia, Baldwin Park, Claremont, Duarte ,  
Glendora, LaVerne, LaHabra Heights, Monrovia, and Pasadena
Committee on Moral Concerns
Doris Tate Crime Victims Bureau
                                                     
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Justice for Murder Victims
Law and Order Committee of the California Peace Officers'  
Association
Los Angeles County Police Chiefs' Association
Office of Criminal Justice Planning
Police Departments of Claremont, El Monte, Irwindale,  
  Pasadena, Pomona, Redding, San Gabriel, San Marino, West  
  Covina and Whittier
Protect Our Children
Tyler's Love Continues

 OPPOSITION:    (Verified  5/30/95)

American Civil Liberties Union
California Attorneys for Criminal Justice

 ARGUMENTS IN SUPPORT:    According to the authoros office,  
under current law there is no legal authority to detain and  
treat 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.  This bill  
establishes civil commitment procedures for the placement  
and treatment of sexually violent offenders in a secure  
mental health facility following their release from prison.

 ARGUMENTS IN OPPOSITION:    The American Civil Liberties  
Union state they oppose this bill on both policy and  
constitutional grounds:

"This wide sweeping legislation permits the state to  
indefinitely confine in mental facilities individuals who  
have committed sexually motivated crimes based on perceived  
fears that these persons will commit future crimes.  This  
bill is essentially a preventive detention scheme based on  
allegations of future dangerousness, and as such violates  
substantive due process of law.

"Pursuant to the U.S. Supreme Court's recent decision in  
Foucha v. Louisiana, the state must prove an individual is  
both mentally ill and dangerous before the person can be  
involuntarily committed.  SB 1143 fails to meet this  
minimal requirement in that a "sexually violent predator"  
                                                     
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as defined in the statute does not apply to a group of  
persons who are mentally ill.  As the Supreme Court noted  
in Foucha:  'The State asserts that because Foucha once  
committed a criminal act and now has an antisocial  
personality that sometimes leads to aggressive conduct, a  
disorder for which there is no effective treatment, he may  
be held indefinitely.  This rationale would permit the  
State to hold indefinitely any other insanity acquittee not  
mentally ill who could be shown to have a personality  
disorder that may lead to criminal conduct.  The same would  
be true of any convicted criminal, even though he has  
completed his prison term.'"






























                                                     
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RJG:lm  9/14/95  Senate Floor Analyses
              SUPPORT/OPPOSITION:  SEE ABOVE
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