BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 179 (Pavley)
As Introduced February 7, 2011
Hearing date: March 22, 2011
Penal and Welfare and Institutions Codes
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TOLLING OF PAROLE:
SEXUALLY VIOLENT PREDATOR PATIENTS AND DEFENDANTS
HISTORY
Source: Los Angeles County District Attorney
Prior Legislation: Proposition 83 of the 2006 November General
Election
SB 1128 (Alquist) - Chapter 337, Statutes 2006
Support: California State Sheriffs' Association; California
District Attorneys Association
Opposition:California Public Defenders Association
KEY ISSUE
SHOULD THE PAROLE OF A PERSON SUBJECT TO INVOLUNTARY COMMITMENT AS A
SEXUALLY VIOLENT PREDATOR BE TOLLED THROUGHOUT THE PROCESS - FROM
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THE PROBABLE CAUSE STAGE UNTIL DISMISSAL OF PROCEEDINGS OR RELEASE
OF THE PERSON FROM CONFINEMENT?
PURPOSE
The purpose of this bill is to toll the parole period of any
person subject to commitment as a sexually violent predator from
the initial finding of probable cause through release from
dismissal of proceeding or release from confinement.
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
"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 where, pursuant to a screening
process by the Department of Corrections and Rehabilitation or
Board of Parole Hearings, an inmate fits the criteria for
evaluation as an SVP, the inmate shall be referred for
evaluation to the Department of Mental Health (DMH). (Welf. &
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Inst. Code � 6601, subd. (b).)
Existing law provides that the inmate "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 meets the criteria for SVP commitment, DMH shall request
a prosecutor to file a commitment petition. (Welf. & Inst. Code
� 6601, subd. (d) and (h).)
Existing law provides that if the prosecutor concurs with the
recommendation of DMH, the prosecutor shall file a petition for
commitment. In an initial hearing on the petition, the court
determines whether or not there is probable cause that the
inmate is an SVP. (Welf. & Inst. Code �� 6601, subd. (i) and
6601.5.)
Existing law provides that where the court finds probable cause
that the person is an SVP, a formal trial upon proof beyond a
reasonable doubt is held. If the state prevails, the SVP is
committed to DMH for treatment for an indeterminate period of
time. (Welf. & Inst. Code � 6603.)
Existing law in the Penal Code provides, "The parole period of
any person found to be a sexually violent predator shall be
tolled until that person is found to no longer be a sexually
violent predator, at which time the period of parole, or any
remaining portion thereof, shall begin to run." (Pen. Code �
3000, subd. (a)(4)a.)
Existing law in the Welfare and Institutions Code provides, "(k)
If the person is otherwise subject to parole, a finding or
placement made pursuant to this article shall toll the term of
parole
pursuant to �Section 3000 of the Penal Code]" (Welf. & Inst.
Code � 6601, subd. (k).)
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This bill amends the SVP parole tolling provisions in the Penal
Code so as to provide:
? �An] order issued by a judge ? finding that the
petition, on its face, supports a finding of probable
cause ? that the individual? is likely �an SVP] ...
shall toll the period of parole of that person, from
the date that person is released by �CDCR] until a
date determined as follows:
(A) If the judge, following a probable cause hearing,
dismisses the petition ? the date the judge enters the
order of dismissal.
(B) If the judge or jury is not satisfied beyond a
reasonable doubt that the person is a sexually violent
predator?, the date the judge enters the order.
(C) If the person is committed to �DMH] as a sexually
violent predator and subsequently a court orders that
the person be unconditionally discharged ? the date
the judge enters the order.
This bill amends the SVP parole tolling provisions in the
Welfare and Institution Code as follows:
An order issued by a judge pursuant to Section 6601.5,
finding that the petition, on its face, supports a
finding of probable cause to believe that the
individual named in the petition is likely to engage
in sexually violent predatory criminal behavior upon
his or her release, shall toll that person's parole
pursuant to �Penal Code � 3000].
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
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As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
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SB 179 closes a loophole in California law to ensure
that current sex offenders serve their court-ordered
parole time, after their release from state hospitals
into society. The period immediately following
release from incarceration and a state hospital is
critical to successful reintegration of the offender
into society. Public protection requires the state to
effectively supervision and monitor parolees,
including the judicious revocation actions, and to
provide educational, vocational, and counseling
necessary to assist parolees in the transition between
imprisonment and discharge.
Under current law, sex offenders who have completed
their prison sentence must be evaluated by
California's Sexually Violent Predator Review Program
under the jurisdiction of the Department of Mental
Health. If a Sexually Violent Predator (SVP) petition
is filed, the respondent remains in a state hospital
until the proceedings are complete and it is
determined whether or not the offender is fit for
release into society.
Given an inconsistency in California law, the parole
time (three to five years) for a sex offender who
meets the SVP criteria and has now become a respondent
in an SVP proceeding, does not stop (toll) immediate
upon his "release" from prison, but continues while
the offender is still confined in a state hospital
until he has had a SVP trial or his case is dismissed
by the court. Because many of these proceedings are
subject to delay, offenders can literally "run out the
clock" on their parole sentence (from three to five
years) and have little or no remaining parole time
after release into the community.
Sexually violent predators are among the most
dangerous groups of offenders. As an SVP must have
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been convicted of and imprisoned for a forcible sex
crime (usually more than one and almost always
violent) and two psychiatrists must have found that
the individual has a mental condition that makes it
likely that this person will commit a similar offense
in the future. We create a great risk to public
safety to release these individuals from custody
without parole supervision.
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2. Policy of Monitoring High-Risk Sex Offenders in the Community
Numerous provisions have been passed or implemented in the past
decade to increase supervision and monitoring of sex offenders
in the community. This is particularly true as concerns
high-risk sex offenders. Two prominent examples include SAFE
teams - special law enforcement units that monitor certain sex
offenders (Pen. Code � 13887) and mandatory risk evaluation of
all sex offenders, as mandated by SB 1128 (Alquist) Ch. 337,
Statutes of 2006. Chelsea's Law - AB 1844 (Fletcher) Ch. 219,
Stats. 2010 expanded sex offender monitoring through enactment
of a form of what is called the sex offender containment model.
Consistent with this emphasis on monitoring high-risk sex
offenders in the community, SB 1128 tolled the parole of all
persons evaluated as SVPs from the beginning of hearing and
trial process through any SVP commitment for involuntary
treatment by DMH. Without full tolling of parole throughout the
process, a person subject to SVP commitment evaluation and trial
could be released from confinement without ever being supervised
and monitored on parole in the community. Media reports and
prior analyses published by this Committee have noted that
dozens of persons have been released without parole supervision
after they prevailed in an SVP trial, were released after the
state dropped the case, or were not found to be SVPs by expert
evaluators.
Proposition 83 of the 2006 General Election - often called
Jessica's Law - effectively repealed the parole tolling
provisions from SB 1128. Proposition 83, tolled the parole of a
person evaluated as an SVP only during the period that the
person was actually found to be an SVP at trial and committed to
DMH for treatment. Because the SVP process can be lengthy and
subject to delays, many persons evaluated as SVP have run
through their entire parole time before being released into the
community. This bill would address this problem by tolling the
parole period for the duration of the SVP process. This bill
essentially restores the tolling provisions previously enacted
by SB 1128.
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3.Backgound: Double Jeopardy Does not Apply to SVP Proceedings
- Inmates are Subject to Multiple Commitment Attempts if
Statutory and Constitutional Requirements are Met
A person who is tried for a criminal offense cannot be tried
again, unless the matter ends in a mistrial. A person who is
acquitted in a criminal trial cannot be retried for that same
crime. (United States Const. Amends. V and XIV.) Because SVP
proceedings are civil in nature, double jeopardy protections do
not apply. (Turner v. Superior Court (2003) (Turner II) 105
Cal.App.4th 1046.) However, collateral estoppel principles bar
re-litigation of issues actually decided at a prior proceeding,
unless circumstances have changed. Fundamental fairness
prohibits the state from repeatedly subjecting a person to
litigation of an issue that has been determined in the person's
favor at a trial. (Id, at pp. 1056-1063.)
It appears that if a person is found not to be an SVP in a jury
trial, that person can possibly be subject to SVP commitment
processes again if he is returned or committed to prison.
Determinations of whether or not the person could face another
commitment trial would be determined on a case-by-case
determination whether or not changed circumstances support a new
commitment. However, where the jury in a SVP trial cannot agree
whether or not the person is an SVP, the matter can be retried,
as that is the equivalent of a mistrial in a criminal jury
trial. In such circumstances, no issues have been conclusively
determined by the trial. (People v. Turner (2000) (Turner I) 78
Cal.App.4th 1131, 1135, 1142-1143.)
It seems clear that a person who has not been found to be an SVP
at a trial would want to avoid facing commitment again. It
appears that persons subject to SVP commitment would seek to
serve his or her entire period of parole while undergoing the
SVP commitment process. He could not then be returned to prison
for a parole violation and could thereby avoid facing commitment
again.
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