BILL ANALYSIS
AB 168
Page 1
Date of Hearing: April 29, 2009
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Kevin De Leon, Chair
AB 168 (Nava) - As Amended: April 14, 2009
Policy Committee: Public
SafetyVote: 7-0
Judiciary 10-0
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill authorizes the Department of Corrections and
Rehabilitation (CDCR), the Department of Mental Health (DMH),
and the district attorney to obtain records of sustained
juvenile petitions for specified sex offenses committed by a
person 14 years or older in a sexually violent predator (SVP)
law proceeding. Specifically, this bill:
1)Provides that in any civil proceeding based on SVP law,
counsel, the jury, and any other person authorized by the SVP
laws, or by the court, may inspect these records. The records
remain confidential and may be used only for SVP proceedings
and for subsequent treatment by DMH.
2)Adds the offenses specified in this bill to exceptions in
existing law related to the destruction of juvenile records
upon reaching the age of 38, and allows inspection of juvenile
case files in SVP cases, as specified.
FISCAL EFFECT
Unknown annual GF costs, well in excess of $150,000, to the
extent making additional juvenile sex offender records available
for SVP-related proceedings results in additional commitments.
Given most SVPs spend years in custody/treatment, and assuming a
AB 168
Page 2
DMH per capita cost of about $180,000, if this bill results in
just one additional SVP commitment per year, the annual cost in
about five years would exceed $900,000.
COMMENTS
1)Rationale . According to the author and sponsor, the L.A.
District Attorney, this bill addresses what the author sees as
a statutory anomaly in which several serious sex offenses that
qualify in statute as predicate offenses for SVP status are
not included in the list of serious offenses that are not
sealed and may be accessed by authorities for specified
purposes.
To be determined an SVP, an offender must be convicted of
specified violent sexual offense, defined as a specified sex
act committed by force or fear. The specified predicate
offenses are rape, aggravated sexual abuse of a child, sodomy,
child molestation, oral copulation, continuous sexual abuse of
a child, sexual penetration, kidnapping and assault with
intent to commit one of these offenses. The author's intent is
to conform the offenses specified in this definition to
provisions of law related to juvenile offenders so as to
authorize access to prior juvenile records for the purpose of
SVP evaluations.
According to the author, AB 168 slightly expands the list of
documents currently accessible to relevant agencies for SVP
proceedings. This bill would authorize access to records of
SVP predicate offenses, as defined in Welfare and Institution
Code 6600(b), committed when the person attained 14 years of
age or older. Under existing law, courts are already
prohibited from sealing most SVP predicate offenses because
they are cross- listed as Welfare & Institutions Code 707(b)
offenses. The offenses at issue in this bill are rape, sodomy
and oral copulation committed under the threat of future
retaliation, assault with the intent to commit specified
forcible sex crimes, and continuous sexual abuse of a child.
In 2007 the Court of Appeal decided In re James H, which held
AB 168
Page 3
that sealed juvenile records of a sex offender's crime may not
be disclosed for the purpose of determining whether the
offender is an SVP. The court stated, "The Legislature could
have written the SVP Act to specifically allow the use of such
records in SVP proceedings but it did not. If the Legislature
determines that sealed records should be available for this
purpose, it may amend section 781 or the SVP Act to so permit
their release."
AB 168 responds to the court by authorizing the disclosure and
use of a limited category of sealed juvenile records in SVP
hearings and assessments.
The author and sponsor contend that SVP predicate offenses are
egregious crimes that indicate an individual's inclination to
engage in future sexually violent crimes. Records of these
offenses contain sociological and psychological reports that
would be a valuable tool for inspection and use in an SVP
proceeding. With this information, the Department of Mental
Health, the Department of Corrections and Rehabilitation, and
petitioning attorneys would be in a better position to
evaluate the sexual and violent propensity of an offender.
2)The DMH Sex Offender Commitment Program , largely established
in 1995, defines an SVP as a person who has been convicted of
a specified sexually violent offense and who has a diagnosed
mental disorder that makes the person a danger to the health
or safety of others. When CDCR determines an inmate may be an
SVP, the director refers the person to DMH for evaluation. A
hearing is held to determine whether there is probable cause
to believe a person who is the subject of a petition for civil
commitment as an SVP is likely to engage in sexually violent
predatory criminal behavior upon release. If so determined,
there is a jury trial to determine whether beyond a reasonable
doubt the person is an SVP. Upon such a finding, the person is
held until the Director of DMH finds the person is no longer
likely to commit a sexually violent offense.
Since the advent of the program, 24,396 offenders have been
referred to DMH for SVP evaluation. Of this number: 1,639 met
the clinical evaluation requirement and were referred to
AB 168
Page 4
district attorneys, 1,078 were found to have probable cause;
295 have a trial pending, and 616 have been committed to the
program.
3)Previous legislation , AB 2409 (Nava), 2008, was similar to AB
168 and was held on this committee's Suspense File.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081