BILL ANALYSIS �
AB 421
Page 1
Date of Hearing: April 12, 2011
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 421 (Smyth) - As Introduced: February 14, 2011
SUMMARY : Changes procedures in sexually violent predator (SVP)
commitment proceedings. Specifically, this bill :
1)Specifies each party receives 10 peremptory challenges in
selecting the jury.
2)Allows the prosecuting attorney access to all records
concerning the defendant without obtaining a court order.
3)Expresses findings regarding the necessity for indeterminate
terms for SVP commitment proceedings.
EXISTING LAW :
1)Defines a "sexually violent predator" as "a person who has
been convicted of a sexually violent offense against at least
one victim, 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." �Welfare and Institutions Code (WIC)
Section 6600(a)(1).]
2)Provides that a person found to qualify as a SVP shall be
committed to the Department of Mental Health for an
indeterminate term of confinement. (WIC 6604.)
3)Provides for a jury trial in sexually violent predator
proceedings. �WIC Section 6603(a).]
4)Characterizes cases filed under the Sexually Violent Predator
Act as "special proceedings of a civil nature", not criminal
proceedings. �Civil Procedure Code (CPC) Section
2016.020(a).]
5)Allows each party six peremptory challenges in civil cases.
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�CPC Section 231(c).]
6)Allows each party 20 peremptory challenges in criminal cases,
if the offense charged is punishable with death or with
imprisonment in the state prison for life. �CPC Section
231(a).]
7)Provides that, unless otherwise limited by order of the court
in accordance with this title, any party may obtain discovery
regarding any matter, not privileged, that is relevant to the
subject matter involved in the pending action or to the
determination of any motion made in that action, if the matter
either is itself admissible in evidence or appears reasonably
calculated to lead to the discovery of admissible evidence.
Discovery may relate to the claim or defense of the party
seeking discovery or of any other party to the action. (CPC
Section 2017.010.)
8)Provides that a patient has a privilege to refuse to disclose,
and to prevent another from disclosing, a confidential
communication between the patient and a psychotherapist.
(Evidence Code Section 1014.)
9)Creates and exception to the psychotherapist-patient privilege
where the psychotherapist has reasonable cause to believe that
the patient is in such mental or emotional condition as to be
dangerous to himself or to the person or property of another
and that disclosure of the communication is necessary to
prevent the threatened danger. (Evidence Code Section 1024.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author:
" Peremptory Challenges . Existing case law provides for only six
preemptory challenges per side in SVP trials on the grounds
that the commitment is civil in nature and therefore each side
should only get six peremptory challenges as they do in civil
cases. However, the burden of proof in SVP trials is proof
beyond a reasonable doubt as found by a unanimous jury,
whereas, in a civil trial, the burden is a preponderance of
the evidence and only requires a 9-3 verdict. Moreover, SVP
cases involve delicate issues of mental health and sexual
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offenses, two areas that can make jury selection very
challenging. Given the higher burden of proof, the
requirement of a unanimous verdict, the nature of the issues
involved in an SVP trial, and the indefinite commitment that
can result, each side should have a minimum of 10 peremptory
challenges, as this bill provides.
" SVP Records . In SVP proceedings, the defense has consistently
opposed efforts by district attorneys to access even the most
routine and relevant records of their clients. This includes
the defendant's hospital psychological treatment records, as
well as jail and prison records (including medical,
psychiatric, and disciplinary records.)
"It is critical for the prosecution to be able to review these
records to properly prepare for trial. The motions and writs
filed by the defense in these cases opposing release of
records unduly delay the proceedings, and when granted, leave
the prosecution less than fully informed and at a
disadvantaged position at trial.
"One might argue that such language violates an individual's
right to privacy. However, the Ninth Circuit recently held
that a potential SVP's medical information is not protected by
the right to privacy. (Seaton v. Mayberg (2010) 610 F.3d
530). Notwithstanding, the defense continues to resist
efforts by the prosecution to obtain records relevant to the
proceedings. The proposed change is phrased in terms of 'all
records concerning the person' based upon identical language
in Welfare and Institutions Code section 6605(a), essentially
to level the playing field. Adding the proposed language
directly to the statutory scheme will give the prosecution
timely access to the relevant records, discourage future
litigation, and prevent unnecessary delay.
" Justification of Indeterminate Commitment . In People v. McKee
(2010) 47 Cal.4th 1172, the California Supreme Court concluded
that the People had not met their burden to show that
differential treatment of SVPs, as it relates to length of
commitment, was justified under an equal protection analysis.
Specifically, the court found that the state had not justified
an indeterminate length of commitment for SVPs in light of
determinate lengths of commitment for other persons civilly
committed such as mentally disordered offenders (MDO) or
persons found not guilty by reason of insanity (NGI). The
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case was remanded for further hearings, which are pending.
"Indeterminate terms are imposed in SVP/sexually dangerous
person statutes in all jurisdictions having such statutes in
the United States. This is because of the long-term treatment
needs of this population, as well as the particularized threat
to public safety that these individuals represent. In 2006, as
part of Jessica's Law, California changed its statute to
conform with the other states in this regard. As it was only
one part of Jessica's Law, there was not a specific
justification of this particular provision, but rather a
generalized statement of purpose relating to the entire
measure.
"The court did not find this sufficient. Adding the proposed
language to the SVP Act will make it clear that the
Legislature has specifically considered and recognizes the
differential treatment needs of the SVP population, including
length of commitment."
2)Background on Sexually Violent Predator Act : Originally, a
SVP commitment was for two years. In 2006, the act was
amended to create a lifelong commitment or until it is shown
the defendant no longer poses a danger to others. �See People
v. McKee (2010) 47 Cal.4th 1172, 1185-1187.]
3)Inadequate Statement of Necessity to Overcome Equal Protection
Concerns : The Supreme Court recently found that persons
subject to commitment under the SVP Act are similarly situated
to persons committed as MDOs and to persons not guilty by
reason of insanity (NGI) subject to extended commitment.
(People v. McKee, supra, 47 Cal.4th 1172, 1203-1207.) But
SVPs are treated differently than others committed in special
civil proceedings. While SVPs may be held indefinitely
unless, by a preponderance of the evidence, they prove
themselves no longer mentally ill and dangerous, MDOs and
persons not guilty by reason of insanity may be held for
periods of one or two years respectively, unless the state
proves beyond a reasonable doubt that they remain mentally
disordered and dangerousness. (Id. at pp. 1201-1202, 1207.)
The court held that, absent a showing of a compelling state
interest that justifies the differential treatment, the equal
protection clause requires that SVPs be afforded procedural
protections equivalent to those that govern MDO and NGI
extended commitment proceedings. (Id. at pp. 1197- 1198,
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1207-1210.) The court found the State had not satisfied its
burden of showing that SVPs are more dangerous and so should
be treated differently. The assertions cited in the ballot
initiative that sex offenders are more likely to reoffend are
not the same as facts, and they alone do not justify treating
SVPs differently. (Id. at p. 1206.)
The Supreme Court remanded for an evidentiary hearing, which has
yet to occur.
The language in the ballot initiative which the court found to
be inadequate was: "Sex offenders have very high recidivism
rates. According to a 1998 report by the U.S. Department of
Justice, sex offenders are the least likely to be cured and
the most likely to reoffend, and they prey on the most
innocent members of our society. More than two-thirds of the
victims of rape and sexual assault are under the age of 18.
Sex offenders have a dramatically higher recidivism rate for
their crimes than any other type of violent felon." �See
Voters Information Guide, Gen. Elec. (Nov. 7, 2006) text of
Prop. 83, p. 127.] The statement of necessity recited in AB
421 is very similar to the assertions in the ballot
initiative. In fact, they are arguably even less persuasive
because they do not cite to any reports or findings at all.
Thus, the bill does not seem to alleviate equal protection
concerns.
4)Implicates Constitutional Right to Privacy : The federal
constitutional right to privacy encompasses the doctor-patient
relationship, although that right is conditional and may be
waived. �Caesar v. Mountanos (1977) 542 F.2d 1064, 1067,
fn.9.] The California Supreme Court has also recognized the
privacy of psychotherapist-patient relationship. �In re
Lifschutz (1970) 2 Cal.3d 415, 431-432.] Furthermore,
state-created liberty interests are entitled to the protection
of the federal Due Process Clause �see, e. g., Vitek v. Jones
(1979) 445 U.S. 480, 488], and the full scope of a patient's
federal due process rights can be determined by substantive
liberty interests created by state. Thus, even if there were
not a clearly established federal constitutional right to
privacy, there is a California state-created liberty interest
in the right to privacy. �People v. Gonzales, supra, 192
Cal.App.4th at pp. 179-180.]
5)Effect on the Psychotherapist-Patient Privilege : The courts
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have consistently recognized "the public interest in
supporting effective treatment of mental illness and . . . the
consequent public importance of safeguarding the confidential
character of psychotherapeutic communication." �People v.
Wharton (1991) 53 Cal.3d 522, 555.] This interest is
reflected in Evidence Code which protects confidential
communications between a psychotherapist and patient from
disclosure. But, there is a "dangerous patient" exception to
the privilege. There is no privilege where the psychotherapist
has reasonable cause to believe that the patient is in such
mental or emotional condition as to be dangerous to himself,
herself, or to the person or property of another and that
disclosure of the communication is necessary to prevent the
threatened danger. This exception would allow the prosecution
to view the patient's records if it presents evidence to show
that the communications were not confidential, the privilege
was waived, or the communications fall within an exception to
the privilege. �Story v. Superior Court (2003) 109
Cal.App.4th 1007, 1015.] The exception should be narrowly
construed. �People v. Gonzales (2011) 192 Cal.App.4th 152,
165.]
This bill rests on the premise that commencement of SVP
proceedings operates as an automatic waiver of the privilege.
The institution of SVP Act proceedings does not strip an
individual of the right to privacy against the unjustified
disclosure of information protected by the
psychotherapist-patient privilege such that the
dangerous-patient exception automatically applies. �People v.
Gonzales, supra, 192 Cal.App.4th at p. 170.]
6)Effect on Discovery Provisions : Criminal discovery rules do
not apply to SVP proceedings. �Albertson v. Superior Court
(2001) 25 Cal.4th 796, 804.] Rather, because a case filed
under the SVP Act contemplates a non-punitive commitment for
treatment purposes, it is a "special proceeding of a civil
nature," and so the Civil Discovery Act (CPC Section 2016.010
et seq.) applies. (CPC Section 363.) This bill overrides the
discovery provisions of the state's Civil Procedure Code to
allow the prosecution access to the defendant's normally
privileged medical records without a court order.
7)Right to a Jury Trial and Peremptory Challenges : An SVP
proceeding is a special civil proceeding with a statutory
right to a jury trial, not a constitutional one. �People v.
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Rowell (2005) 133 Cal.App.4th 447, 451.] The Sixth Amendment
right to jury trial does not apply to civil proceedings. The
Seventh Amendment right to jury trial in civil law cases does
not apply to the states. �Dohany v. Rogers (1930) 281 U.S.
363, 369.] And it would not apply to special proceedings, in
any event.
People v. Calhoun (2004) 118 Cal.App.4th 519, 523-524, held
the parties were entitled to only six peremptory challenges.
However, this was before the act provided for indefinite
commitments. Under Proposition 83, an individual SVP's
commitment term is indeterminate, rather than a two-year term
as in the previous version of the act. Now, the outcome of a
commitment proceeding is akin to a life sentence. In criminal
cases where the offense is punishable by a life sentence, each
party receives 20 peremptory challenges. �CPC Section
231(a).] While the bill increases the number of peremptory
challenges, the author notes this number is the minimum that
should be afforded. Should there be even more preemptory
challenges given the implications of the proceedings?
8)Argument in Support : According to the California District
Attorneys Association (the sponsor of this bill),
"�P]rosecutors' efforts to access records of potential SVPs
have met with resistance from the defense. In SVP
proceedings, the defense has consistently opposed efforts by
district attorneys to access even the most routine and
relevant records of their clients. This includes the
defendant's hospital psychological treatment records, as well
as jail and prison records (including medical, psychiatric,
and disciplinary records).
"It is critical for the prosecution to review these records to
properly prepare for trial. The motions and writs filed by
the defense in these cases opposing release of records unduly
delay the proceedings, and when granted, leave the prosecution
less than fully informed and at a disadvantaged position at
trial. . . .
"Finally, a California Supreme Court ruling has called into
question the state's justification for setting a term of
commitment for SVPs that is different from other offenders who
are civilly committed. In People v. McKee (2010) 47 Cal.4th
1172, the California Supreme Court concluded that the People
had not met their burden to show that different treatment of
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SVPs, as it relates to length of commitment, was justified
under an equal protection analysis. Specifically, the court
found that the state had not justified an indeterminate length
of commitment for SVPs in light of the determinate lengths of
commitment for other persons civilly committed such as
mentally disordered offenders (MDO) or persons found not
guilty by reason of insanity (NGI). The case was remanded for
further hearings, which are pending.
"Indeterminate terms are imposed in SVP/sexually dangerous
persons statutes in all jurisdictions having such statutes in
the United States. This is because of the long-term treatment
needs of this population, as well as the particularized threat
to public safety that these individuals represent. In 2006,
as part of Jessica's Law, California changed its statute to
conform with the other states in this regard. As it was only
one part of Jessica's Law, there was not a specific
justification of this particular provision, but rather a
generalized statement of purpose relating to the entire
measure. The court did not find this sufficient. Adding the
proposed language to the SVP Act will make it clear that the
Legislature has specifically considered and recognizes the
differential treatment needs of the SVP population, including
length of commitment."
9)Arguments in Opposition : According to the California Public
Defenders Association (CDPA), "CPDA does however oppose the
proposed amendment of WIC �6604. We view this amendment as an
attempt to preempt the evidentiary hearing process that is
presently ongoing in People v. McKee (2010) 47 Cal.4th 1172.
Therein the appellant challenged the constitutionality of the
SVPA on the grounds that it violates equal protection by
imposing an indeterminate commitment, and places the burden on
the committee to prove a change in condition to secure his
release. The Supreme Court remanded the matter 'to the trial
court to determine whether the People, applying the equal
protection principles articulated in Moye and related cases
discussed in the present opinion, can demonstrate the
constitutional justification for imposing on SVP's a greater
burden than is imposed on MDO's and NGI's in order to obtain
release from commitment.' At page 1209.
"Similar language was included in the original legislative
intent of AB 888, which ultimately was enacted as the Sexually
Violent Predator Act, effective January 1, 1996. Because the
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legislative enactment declares it, does not make it so.
Absent evidentiary justification, a different statutory scheme
for SVPs as opposed to MDOs and NGIs, imposing disparate
treatment, cannot withstand a constitutional challenge under
the Equal Protections clause. The issue has been addressed
by our state Supreme Court, based on constitutional grounds.
It is inappropriate for the legislature to try to preempt the
evidentiary process that has been ordered to be pursued by our
highest court.
"These 'findings' seek to justify, five years after the fact,
the indeterminate term of civil commitment created initially
by SB 1128, which was then superseded by Proposition 83.
These 'findings' are not evidence-based; to the contrary:
"(a) The poor prognosis for 'curing' Axis I mental
illnesses is not a basis for civil commitment under any
statutory scheme. "Treatment" to reduce future dangerousness
has always been the justification for civil commitment in
California and elsewhere. No civil commitment scheme exists
anywhere in the nation which aims to 'cure' mental illness.
"(b) There is no basis for a 'finding' that the prognosis
for 'treating' sexually violent predators is any better or
worse than the prognosis for treating any other category of
civilly committed individuals, or that the SVP treatment takes
longer. Treatment needs vary from human being to human being,
across all categories of civil commitment. Treatment
amenability does as well. According to recent testimony in
the hearing mandated by the Supreme Court, from the Chief
Psychiatrist of Coalinga State Hospital, the Phase program,
currently in place for SVP's, can be completed by a motivated
individual in fewer than four years. Moreover, there is no
scientific basis for the belief that completion of all five
phases of the program must be accomplished, in every instance,
to ensure public safety.
"(c) There is no basis for finding that the treatment needs
of SVP's are 'very different' than the traditional treatment
modalities for other classes of civilly committed individuals.
Overwhelming evidence exists that the
'Risk-Needs-Responsivity' model of treatment is the best
practice for all mentally disordered individuals who are
civilly committed. Treatment for sex offenders continually
changes with advances in science, and what was considered
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'best practices' for treatment three years ago no longer is.
Moreover, sex offenders who are civilly committed as MDO's,
NGI-X's, and MDSO's require (and receive) the same type of sex
offender treatment as SVP's, in addition to the complicating
need for medication treatment and all it entails. These
'findings' are nothing more than a transparent attempt to
invent a justification for disparate treatment for SVP's,
when, in fact, no such justification exists.
"CPDA also opposes the proposed addition of �6609.4, which
provides that notwithstanding other provisions of law, the
prosecutor shall have access to all records concerning a
person subject to proceedings in ��6601, 6602, 6605, and 6608,
upon written request of third party without the necessity of a
court order. Proceedings under ��6601 & 6602 are 'pre-trial'
proceedings. Proceedings pursuant to ��6605 & 6608 are after
an individual has been committed as an SVP. Under �6605, upon
the recommendation of the Department of Mental Health �DMH], a
person can either petition for conditional release and/or
unconditional release to the community. However, in the
fifteen years the SVPA has been in effect, DMH has never once
made such a recommendation, so the provision is of little
effect. Under �6608 a person, without the concurrence of DMH,
can petition for conditional release to a state-operated
forensic conditional release program. The person has the
burden of proof by a preponderance of the evidence to prove
that he would not be a danger to the health and safety of
others while under supervision and treatment in the community.
"This amendment seeks to abrogate the statutory and
constitutional rights afforded other civil committees, so once
again the potential SVP committee is treated differently,
despite the fact the individual has not even received the due
process of adjudication on the merits. Further, this
provision is unnecessary. Section 6601(d) presently provides
the prosecutor access to the DMH Evaluations performed on the
potential committee while he is in prison, prior to his
scheduled parole release date. Additionally, the prosecutor
is afforded copies of any other supporting documents, for
purposes of making a filing determination.
"Once probable cause has been found (�6602), the prosecutor
can seek updated evaluations and/or replacement evaluations
pursuant to �6603(c), once per year for purposes of preparing
the case for trial. The treatment information is presently
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available to the prosecutor without need for a Subpoena Duces
Tecum �see Lee v. Superior Court of Orange County (2009)177
Cal.App.4th 1108.] Under People v. Martinez (2001) 88
Cal.App.4th 465, a potential committee has no expectation of
privacy in prior commitment records.
"Once again this legislation appears to be an attempt to
circumvent a recent holding in People v. Gonzalez (2011) 192
Cal.App.4th 152, wherein the reviewing court ruled that the
trial court, in an SVP proceeding, erred in releasing
privileged psychotherapeutic records generated while the
potential committee was on parole in the community seeking
treatment. The Sixth District determined that the records
were privileged under Evidence Code �1014, and the 'dangerous
patient' exception, under Section 1024, was not established.
"Other civil committees, including MDOs and NGIs, enjoy the
confidentiality of treatment records under Welfare and
Institutions Code �5328, psychotherapist-patient privilege
under EC �1014, the right to privacy under the California
Constitution, Article 1, Section 1, and the Due Process Clause
of the United States Constitution. The aforementioned
privileges are not absolute, as discussed above. Indeed, the
statutory exceptions that exist in favor of the prosecutor are
more numerous within the SVPA than in other civil commitments.
"If the petitioning agency, without judicial oversight, is
permitted to get all records pertaining to the person sought
to be committed, this would circumvent Welfare and
Institutions Code section 827 (confidentiality of juvenile
court records) and would allow the petitioning agency to
obtain records covered by other statutory and constitutional
privileges (i.e. HIPPA, constitutional right to privacy,
attorney/client privilege) without judicial oversight or
notice to the interested parties."
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association (Sponsor)
California State Sheriffs' Association
Opposition
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California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744