BILL NUMBER: SB 11 CHAPTERED 07/22/99 CHAPTER 136 FILED WITH SECRETARY OF STATE JULY 22, 1999 APPROVED BY GOVERNOR JULY 21, 1999 PASSED THE ASSEMBLY JULY 8, 1999 PASSED THE SENATE APRIL 29, 1999 AMENDED IN SENATE APRIL 6, 1999 INTRODUCED BY Senators Schiff, Costa, and Rainey (Coauthors: Senators Karnette, Leslie, McPherson, O'Connell, Polanco, and Solis) (Coauthors: Assembly Members Alquist, Campbell, Cunneen, Dickerson, Dutra, Granlund, Havice, House, Leach, Longville, Machado, Margett, Oller, Pescetti, and Scott) DECEMBER 7, 1998 An act to amend Section 6601 of, and to add and repeal Section 6601.1 of, the Welfare and Institutions Code, relating to sexually violent predators, and declaring the urgency thereof, to take effect immediately. LEGISLATIVE COUNSEL'S DIGEST SB 11, Schiff. Sexually violent predators. Under existing law, whenever the Director of Corrections determines that an individual who is in custody, and who is either serving a determinate prison sentence or whose parole has been revoked, may be a sexually violent predator, the director is required to refer the person for evaluation by the State Department of Mental Health. If the State Department of Mental Health determines that the person is a sexually violent predator, the Director of Mental Health is required to forward a request for a petition for commitment to be filed by the county in which the person was convicted of the offense for which the person was committed to the jurisdiction of the Department of Corrections. This bill would provide that a petition may be filed if the individual was in custody pursuant to his or her determinate prison term, parole revocation term, or hold placed for an evaluation under specified provisions of law at the time the petition is filed, and shall not be dismissed on the basis of a later judicial or administrative determination that the custody was unlawful if the unlawful custody was the result of a good faith mistake of fact or law. This bill would provide that it applies to any petition filed on or after January 1, 1996. This bill would provide that this provision is declaratory of existing law. This bill would require the Department of Justice, in cooperation with the Youth and Adult Correctional Agency and the State Department of Mental Health, to report certain information to the Legislature on or before January 1, 2002. This bill would declare that it is to take effect immediately as an urgency statute. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 6601 of the Welfare and Institutions Code is amended to read: 6601. (a) (1) 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. However, if the inmate was received by the department with less than nine months of his or her sentence to serve, or if the inmate's release date is modified by judicial or administrative action, the director may refer the person for evaluation in accordance with this section at a date that is less than six months prior to the inmate's scheduled release date. (2) A petition may be filed under this section if the individual was in custody pursuant to his or her determinate prison term, parole revocation term, or a hold placed pursuant to Section 6601.3, at the time the petition is filed. A petition shall not be dismissed on the basis of a later judicial or administrative determination that the individual's custody was unlawful, if the unlawful custody was the result of a good faith mistake of fact or law. This paragraph shall apply to any petition filed on or after January 1, 1996. (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 so 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 in the superior court. (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 was committed to 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. (k) If the person is otherwise subject to parole, a finding or placement made pursuant to this article shall not toll, discharge, or otherwise affect the term of parole pursuant to Article 1 (commencing with Section 3000) of Chapter 8 of Title 1 of Part 3 of the Penal Code. (l) Pursuant to subdivision (d), the attorney designated by the county pursuant to subdivision (i) shall notify the State Department of Mental Health of its decision regarding the filing of a petition for commitment within 15 days of making that decision. SEC. 2. Section 6601.1 is added to the Welfare and Institutions Code, to read: 6601.1. (a) The Department of Justice, in cooperation with the Youth and Adult Correctional Agency and the State Department of Mental Health, shall report to the Legislature, on or before January 1, 2002, all of the following with regard to petitions to declare persons to be sexually violent predators filed pursuant to Section 6601 between July 1, 1999 through June 30, 2001: (1) The number of cases in which, despite a later judicial or administrative finding that a person's custody was unlawful, a petition filed under Section 6601 is not dismissed pursuant to paragraph (2) of subdivision (a) of Section 6601 because the unlawful custody was the result of a good faith mistake of fact or law. (2) The circumstances in each case in which a petition filed pursuant to Section 6601 went forward despite a good faith mistake of fact or law that resulted in the unlawful custody of the person. (b) This section shall remain in effect only until January 1, 2003, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2003, deletes or extends that date. SEC. 3. The Legislature finds and declares that paragraph (2) of subdivision (a) of Section 6601 is declaratory of existing law. The Sexually Violent Predator Act authorizes civil commitment of persons who pose a danger as a result of a mental disorder if released from custody. Therefore, where a petition for commitment of a sexually violent predator has been filed, it is not the intent of the Legislature that a person be released based upon a subsequent judicial or administrative finding that all or part of a determinate prison sentence, parole revocation term, or a hold placed pursuant to Section 6601.3, was unlawful. SEC. 4. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: In order to provide immediate protection to the public from sexually violent predators, it is necessary that this act take effect immediately.