BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 669 (Hollingsworth)
As Amended April 14, 2009
Hearing date: April 28, 2009
Welfare & Institutions Code
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TRIAL IN SEXUALLY VIOLENT PREDATOR CASES:
JURY INSTRUCTIONS ON FAILURE TO PARTICIPATE IN TREATMENT
HISTORY
Source: San Diego County District Attorney
Prior Legislation: SB 503 (Hollingsworth) - 2007, failed passage
in Senate Public Safety
Support: Riverside Sheriffs' Association; Association for Los
Angeles Deputy Sheriffs; Los Angeles County District
Attorney; City of Murietta Police Department;
California District Attorneys Association; Riverside
County District Attorney; Southwest California
Legislative Council; City of Menifee; Crime Victims
United of California; City of Hemet; City of Wildomar;
San Bernardino County Sheriffs' Department
Opposition:Taxpayers for Improving Public Safety; Disability
Rights California
KEY ISSUE
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UNDER EXISTING LAW, A PERSON COMMITTED AS A SEXUALLY VIOLENT
PREDATOR (SVP) CAN PETITION FOR UNCONDITIONAL RELEASE OR
SUPERVISED CONDITIONAL RELEASE IF THE DEPARTMENT OF MENTAL
HEALTH (DMH) DETERMINES EITHER THAT THE PERSON IS NO LONGER AN
SVP OR THAT THE PERSON CAN SAFELY BE RELEASED INTO SUPERVISED
COMMUNITY TREATMENT.
(CONTINUED)
UNDER EXISTING LAW, IF THE COURT FINDS PROBABLE CAUSE THAT THE DMH
DETERMINATION IS ACCURATE, THE COURT SHALL HOLD A FULL TRIAL,
EQUIVALENT TO THE INITIAL COMMITMENT TRIAL, TO DETERMINE IF THE
PERSON IS STILL A SEXUALLY VIOLENT PREDATOR.
IN THE TRIAL TO DETERMINE WHETHER OR NOT THE PERSON IS STILL A
SEXUALLY VIOLENT PREDATOR, SHOULD THE JURY BE INSTRUCTED THAT
"FAILURE TO PARTICIPATE IN OR COMPLETE THE DMH SEX OFFENDER
COMMITMENT PROGRAM MAY BE CONSIDERED EVIDENCE THAT HIS OR HER
CONDITION HAS NOT CHANGED"?
PURPOSE
The purpose of this bill is to provide that, in a trial to
determine whether or not a sexually violent predator (SVP)
patient is still an SVP, the court shall instruct the jury in
every case that failure to participate in or complete the
prescribed sex offender treatment may be considered evidence
that the person's condition has not changed.
The Sexually Violent Predator (SVP) law provides for the civil
commitment for psychiatric and psychological treatment of a
prison inmate found to be a sexually violent predator after the
person has served his or her prison commitment. (Welf. & Inst.
Code 6600, et seq.)
Existing law defines a sexually violent predator as an inmate
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"who has been convicted of a sexually violent offense against
one or more victims 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." (Welf. & Inst. Code 6600, subd. (a).)
Existing law defines a "diagnosed mental disorder" as one that
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." (Welf.
& Inst. Code 6600, subd. (c).)
Existing law provides that an SVP patient can, with the
concurrence of the Director of the Department of Mental Health,
petition for unconditional release if the patient "no longer
meets the definition of a sexually violent predator," or for
conditional release. (Welf. & Inst. Code 6605.) The
provisions of section 6605 describe procedures only for trial of
the issue of whether the patient should be unconditionally
released. The section does not describe procedures for
determination of the issue of conditional release. If the court
finds probable cause that the person is no longer a danger to
others, the state must prove in a jury trial that the person is
still an SVP. (Welf. & Inst. Code 6605.)
Existing law provides that an SVP patient can, without the
concurrence of DMH, petition for conditional release. Unless
the court finds the petition to be frivolous, the SVP may seek
to establish that he can be released into the community under
supervision. (Welf. & Inst. Code 6608.)
Existing law provides that if DMH determines that a committed
person is no longer an SVP, DMH "shall seek judicial review of
the person's commitment" through a habeas corpus procedure
described in Welfare and Institutions Code section 7250. (Welf.
& Inst. Code 6605, subd. (f).)
Existing law provides that if the court in a specified habeas
corpus proceeding (which can be filed by DMH, the committed
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person or a relative or friend on behalf of the person) finds
that the person is no longer a sexually violent predator, the
person shall be unconditionally discharged. (Welf. & Inst. Code
6605, subd. (f).)
This bill provides that where, pursuant to Welfare &
Institutions Code section 6605, the court finds probable cause
that a person held as an SVP is no longer an SVP and trial is
held where the state has the burden to prove beyond a reasonable
doubt that the person remains an SVP (subds. (c)-(d), the jury
shall be instructed as follows: "The committed person's failure
to participate in or complete[DMH] Sex Offender Commitment
Program (SOCP) shall be considered evidence that his or her
condition has not changed ?"
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(Citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
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issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
The author states:
The Sexually Violent Predator Act went into effect on
January 1, 1996. These statutes established a new
category of civil commitment for persons classified as
Sexually Violent Predators (SVPs). In establishing
the SVP Act, the California Legislature declared that
there is a small group of extremely dangerous sexual
offenders with diagnosed mental disorders that can be
readily identified while incarcerated. It further
declared that these individuals are not safe to reside
at-large in the community and represent a danger to
the health and safety of others if they are released.
It was the intent of the Legislature that individuals
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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classified as SVPs be confined and treated until they
no longer present a threat to society. The SVP law
has been amended several times since it was enacted.
Current law defines a SVP as a person who has been
convicted of a sexually violent offense against one or
more victims and provides for an indeterminate
commitment. Currently, there are roughly 768 SVPs in
state mental facilities.
Completion of a treatment program is not currently a
condition of release under state law. In fact, a vast
majority of adjudicated SVPs refuse treatment while in
a state hospital. According to the Department of
Mental Health, 70% of Sexually Violent Predators are
currently refusing treatment.
Under this bill, a SVPs refusal to engage in treatment
may be considered evidence that his or her condition
has not changed.
2. Argumentative Jury Instructions and Instructions without
Evidentiary Support
The predecessor to this bill - SB 503 or 2008 - would have
required courts to instruct the jury that an SVP patient's
"failure to engage in or complete treatment shall be considered
evidence that his or her condition has not changed ?" The
instruction proposed in SB 503 was mandatory in two ways. One,
the court was required to give the instruction in every case,
regardless of whether or not there was any evidence that the
person did not engage in or complete treatment. Two, the
instruction told the jury that it must consider failure to
engage in treatment as evidence that the person's condition had
not changed. The instruction, both in the requirement that it
be given in each case and in the requirement that the jury must
draw a specified inference from assumed facts, raised issues as
to whether the instruction was improperly argumentative in
telling the jury to determine critical facts in a particular
manner and with a particular result.
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A Jury Instruction must be Supported by the Evidence
A court has broad power to determine which jury instructions
must be given to the jury. However, the court must give the
jury all instructions necessary to determine the issues
presented by case. (People v. Saddler (1979) 24 Cal.3d 671,
681.) Nevertheless, an instruction should only be given where
there is some evidentiary support. (People v. Hannon (1977) 19
Cal.3d 588, 597-598.)
This bill requires the court to give an instruction concerning
the failure to engage in or complete treatment, regardless of
whether or not there is any evidence to support the instruction.
There would be very few cases where there is evidentiary
support for an instruction concerning the SVP patient's failure
to participate in treatment. That is because DMH would not ever
likely conclude that an SVP patient who did not engage in
treatment was no longer dangerous. The only reasonably possible
case in which that would occur is where a defendant has suffered
some truly incapacitating brain or bodily injury. In such a
case, DMH would likely pursue another option for obtaining
release of the patient.
However, requiring the court to instruct the jury on a patient's
failure to participate in treatment - regardless of whether or
not the person did so - could improperly confuse or prejudice
the jury. Reasonable jurors would likely assume that the person
did not participate in treatment. Such an incorrect assumption
could well turn a close case.
Argumentative Jury Instructions Improperly tell a Jury how to
Find Facts
The law generally disapproves of argumentative jury
instructions. (People v. Wright (1988 45 Cal.3d 1126; People v.
Linkenauger (1995) 32 Cal.App.4th 1603, 1615.) An
argumentative jury instruction essentially directs the jury how
to determine an issue of fact. Determining facts is the core
function of a jury. The court may not usurp that duty and
power. Whether or not a defendant has "failed" to engage in
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treatment and whether or not the defendant has "changed" are
critical facts that the jury, and no other entity, must
determine at an SVP trial. It can be argued that telling a jury
that failure to engage in treatment is evidence that a person
has not changed so as to no longer be a sexually violent
predator invades the province of the jury.
The court in Wright explained:
Defendant's second proposed instruction lists certain
specific items of evidence introduced at trial, and
would advise the jury that it may "consider" such
evidence in determining whether defendant is guilty
beyond a reasonable doubt. The court refused to give
this instruction because it is argumentative, i.e., it
would invite the jury to draw inferences favorable to
the defendant from specified items of evidence on a
disputed question of fact, and therefore properly
belongs not in instructions, but in the arguments of
counsel to the jury. (People v. Wright, supra, 45
Cal.3d at p. 1135.)
The court can properly give a jury "pinpoint" instructions to
direct the jury to important issues in the case, but such an
instruction should not argue facts. A pinpoint instruction is
generally given at the request of one of the parties. Even in
the absence of a request by the parties, the court can direct
the juror's attention to issues of fact. However, such an
instruction should be given in a neutral manner. One of the
more common instructions of this type is the so-called flight
instruction. The flight instruction tells the jury that the
flight of a defendant after he or she has been accused of a
crime "is a fact which, if proved, the jury may consider in
deciding his [or her] guilt or innocence. The weight to which
such circumstance is entitled is a matter for the jury to
decide." The flight instruction has been upheld numerous times.
(People v. Crew (2003) 31 Cal.4th 822 848-849.)
The instruction in this bill is certainly less argumentative
than an instruction telling the jury that it shall consider
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failure to engage in treatment as indicating that the person has
not changed. Nevertheless, the instruction can still be
criticized as being argumentative in that it does not require
that there be any evidence to support.
DOES THE JURY INSTRUCTION PROPOSED BY THIS ESSENTIALLY REQUIRE
THE COURT TO IMPROPERLY MAKE A FINDING A FACT?
IS THE PROPOSED JURY INSTRUCTION IMPROPERLY ARGUMENTATIVE?
3. Suggested Amendment - Modified Jury Instruction Concerning
Evidence that SVP Patient did not Participate in Treatment
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It is suggested that the court should be directed to give an
instruction about the SVP patient's failure to participate in or
complete treatment only if there is evidence to support such an
instruction and the prosecution relies on such evidence to prove
the person remains an SVP. It is suggested that the instruction
should also tell the jury that it is the judge of whether or not
the person did not engage in or complete treatment. The flight
instruction (Pen. Code 1127c) could be a model for a proper
instruction on a person's failure to engage in or complete
treatment. The flight instruction allows the jury to consider a
defendant's flight from the scene of the crime - a fact showing
consciousness of guilt - as evidence of the defendant's guilt.
The flight instruction has been upheld in very numerous
California appellate and Supreme Court decisions.
SHOULD THE PROVISION CONCERNING A JURY INSTRUCTION ABOUT AN SVP
PATIENT'S FAILURE TO PARTICIPATE IN OR COMPLETE TREATMENT READ
AS FOLLOWS:
Where the person's failure to participate in or
complete treatment is relied upon as proof that the
person's condition has not changed, and there is
evidence to support such reliance, the jury shall be
instructed substantially as follows: "the committed
person's failure to participate in or complete the ?
commitment program (SOCP) are facts that, if proved,
may be considered evidence that his or her condition
has not changed. The weight to which such
circumstance is entitled is a matter for the jury to
decide.
4. The Instruction Required by this Bill would likely Rarely be
Given
The instruction required by this bill would reasonably only
apply in an odd or rare case. That is, in order for an SVP
patient to obtain a trial for unconditional release, DMH must
authorize the patient to file the petition for release. DMH is
the patient's treating entity. It would be highly unusual for
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DMH to authorize a patient to file a petition for release based
on the fact that the patient is no longer is an SVP, or that the
patient can safely and conditionally be released into community
treatment, if the patient has not participated in treatment.
Perhaps an individual clinician might disagree with DMH
supervisors on the issue of whether or not the patient is still
a danger to the public. However, a patient's failure to
participate in treatment would not likely be the cause of such a
disagreement.
5. DMH has a Duty to Seek an SVP Patient's Release in a Habeas
Corpus Proceeding if DMH "Has Reason to Believe" the Patient
is no Longer an SVP
Section 6605, subdivision (f), requires DMH, where it "has
reason to believe that a person committed as a sexually violent
predator is no longer a sexually violent predator, to seek
release for the person through a habeas corpus proceeding."
Where the court in the proceeding finds that the person is no
longer an SVP, the person shall be unconditionally released and
unconditionally discharged.
The provisions in subdivision (f) appear to be directly at odds
with the entire process where DMH, following the annual
evaluation of an SVP patient, can authorize a patient to file a
statutory petition for unconditional or conditional release, "if
the person no longer meets the definition of a sexually violent
predator." Section 6605 (f) appears to require DMH to actively
pursue a judicial order of release.
WOULD DMH, ON THE BASIS THAT AN SVP PATIENT IS NO LONGER
DANGEROUS, AUTHORIZE AN SVP PATIENT TO FILE FOR UNCONDITIONAL
RELEASE IF THE PATIENT DID NOT PARTICIPATE IN TREATMENT?
IN A CASE WHERE DMH BELIEVES THAT A PERSON IS NO LONGER AN SVP,
DOES DMH HAVE A DUTY TO SEEK THE PERSON'S RELEASE IN A HABEAS
CORPUS PROCEEDING, IN ADDITION TO AUTHORIZING THE PERSON TO FILE
A PETITION FOR UNCONDITIONAL DISCHARGE?
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