Amended in Assembly March 24, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1607

Introduced by Assembly Member Fox

February 5, 2014

An act to amend begin delete Section end delete begin insert Sections end insert 6608 begin insert , 6608.5, and 6608.8 end insert of the Welfare and Institutions Code, relating to sexually violent predators.

LEGISLATIVE COUNSEL’S DIGEST

AB 1607, as amended, Fox. Sexually violent predators.

Existing law provides for the civil commitment of criminal offenders who have been determined to be sexually violent predators for treatment in a secure state hospital facility, as specified. Existing law requires the Secretary of the Department of Corrections and Rehabilitation to refer a prisoner for evaluation by the State Department of State Hospitals when the secretary determines that the person may be a sexually violent predator and specifies the judicial processes necessary for civil commitment as a sexually violent predator, including, but not limited to, the right to a jury trial. Existing law establishes provisions by which a committed person may petition for conditional release. Existing law requires the court, if it decides a petition for conditional release is not frivolous, to give notice, as specified, at least 30 court days prior to the hearing date for the petition.

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This bill would instead require the court to give notice of the petition hearing at least 35 court days prior to the hearing date.

end delete begin insert

This bill would additionally require the person petitioning for conditional release to list the county or counties of potential domicile to which the petitioner wishes to be conditionally released, and the reasons why each county is chosen for that purpose by the petitioner. The bill would require the court to provide notice of the hearing to a designated attorney from each potential domicile county, who would be authorized to be present, conduct an examination of witnesses, and present evidence at the conditional release hearing.

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Existing law provides that a person who is conditionally released be placed in the county that was the county of domicile of the person prior to the person’s incarceration for the commitment offense, unless the court finds that extraordinary circumstances require placement outside the county of domicile.

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The bill would require the court, upon determining that the person is to be placed in a forensic conditional release program, to set a hearing for the determination of the county of domicile. The bill would require the court to notify designated attorneys from the committing county and each county of potential domicile of that hearing at least 15 calendar days prior to the hearing. The bill would authorize the attorneys to examine witnesses regarding the appropriateness of domicile of the conditionally released person in the attorney’s county. The bill would require the court to make a determination of the county of domicile based on specified criteria.

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Existing law requires the terms and conditions of conditional release to be drafted to include reasonable flexibility to achieve the aims of conditional release, and to protect the public and the conditionally released person.

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The bill would additionally require a conditionally released person, during the term of the conditional release, to submit his or her person and property to search and seizure at any time, day or night, by any law enforcement officer or peace officer, with or without probable cause or reasonable suspicion.

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Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 6608 of the Welfare and Institutions Code
is amended to read:

6608.  

(a) A person who has been committed as a sexually
violent predator may petition the court for conditional release with
or without the recommendation or concurrence of the Director of
State Hospitals. If a person has previously filed a petition for
conditional release without the concurrence of the director and the
court determined, either upon review of the petition or following
a hearing, that the petition was frivolous or that the committed
person’s condition had not so changed that he or she would not be
a danger to others in that it is not likely that he or she will engage
in sexually violent criminal behavior if placed under supervision
and treatment in the community, the court shall deny the
subsequent petition unless it contains facts upon which a court
could find that the condition of the committed person had so
changed that a hearing was warranted. Upon receipt of a first or
subsequent petition from a committed person without the
concurrence of the director, the court shall endeavor whenever
possible to review the petition and determine if it is based upon
frivolous grounds and, if so, shall deny the petition without a
hearing. The person petitioning for conditional release under this
subdivision shall be entitled to assistance of counsel. begin insert The person
petitioning for conditional release shall be required to list the
county or counties of potential domicile to which the petitioner
wishes to be conditionally released, and the reasons why each
county is chosen for that purpose by the petitioner. end insert The person
petitioning for conditional release shall serve a copy of the petition
on the State Department of State Hospitals at the time the petition
is filed with the court.

(b) If the court deems the petition not frivolous pursuant to
subdivision (a), the court shall give notice of the hearing date to
the attorney designated in subdivision (i) of Section 6601 begin insert from the
committing county and to the designated attorney from each county
of potential domicile end insert , the retained or appointed attorney for the
committed person, and the Director of State Hospitals at least begin delete 35 end delete
begin insert 30 end insert court days before the hearing date. begin insert Each designated attorney
shall have the right to be present, conduct an examination of
witnesses, and present evidence end insert begin insert at the conditional release hearing.
The designated attorney from the committing county shall make
the committing county’s case file on the petitioner available to the
designated attorney from each county of potential domicile at least
30 court days before the date of the hearing. end insert

(c) If the petition for conditional release is made without the
consent of the director of the treatment facility, no action shall be
taken on the petition by the court without first obtaining the written
recommendation of the director of the treatment facility.

(d)  begin delete No end delete begin insert A end insert hearing upon the petition shall begin insert not end insert be held until the
person who is committed has been under commitment for
confinement and care in a facility designated by the Director of
State Hospitals for not less than one year from the date of the order
of commitment. begin delete No end delete begin insert A end insert hearing upon the petition shall begin insert not end insert be held
until the community program director designated by the State
Department of State Hospitals submits a report to the court that
makes a recommendation as to the appropriateness of placing the
person in a state-operated forensic conditional release program.

(e) The court shall hold a hearing to determine whether the
person committed would be 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 due to his or her diagnosed mental
disorder if under supervision and treatment in the community. The
attorney designated pursuant to subdivision (i) of Section 6601
shall represent the state and shall have the committed person
evaluated by experts chosen by the state. The committed person
shall have the right to the appointment of experts, if he or she so
requests. If the court at the hearing determines that the committed
person would not be a danger to others due to his or her diagnosed
mental disorder while under supervision and treatment in the
community, the court shall order the committed person placed with
an appropriate forensic conditional release program operated by
the state for one year. A substantial portion of the state-operated
forensic conditional release program shall include outpatient
supervision and treatment. The court shall retain jurisdiction of
the person throughout the course of the program.

(f) Before placing a committed person in a state-operated
forensic conditional release program, the community program
director designated by the State Department of State Hospitals
shall submit a written recommendation to the court stating which
forensic conditional release program is most appropriate for
supervising and treating the committed person. If the court does
not accept the community program director’s recommendation,
the court shall specify the reason or reasons for its order on the
record. The procedures described in Sections 1605 to 1610,
inclusive, of the Penal Code shall apply to the person placed in
the forensic conditional release program.

(g) If the court determines that the person should be transferred
to a state-operated forensic conditional release program, the
community program director, or his or her designee, shall make
the necessary placement arrangements and, within 30 days after
receiving notice of the court’s finding, the person shall be placed
in the community in accordance with the treatment and supervision
plan unless good cause for not doing so is presented to the court.

(h) If the court denies the petition to place the person in an
appropriate forensic conditional release program, the person may
not file a new application until one year has elapsed from the date
of the denial.

(i) In a hearing authorized by this section, the committed person
shall have the burden of proof by a preponderance of the evidence,
unless the report required by Section 6604.9 determines that
conditional release to a less restrictive alternative is in the best
interest of the person and that conditions can be imposed that would
adequately protect the community, in which case the burden of
proof shall be on the state to show, by a preponderance of the
evidence, that conditional release is not appropriate.

(j) Time spent in a begin insert forensic end insert conditional release program pursuant
to this section begin delete shall end delete begin insert does end insert not count toward the term of commitment
under this article unless the person is confined in a locked facility
by the begin insert forensic end insert conditional release program, in which case the time
spent in a locked facility shall count toward the term of
commitment.

(k) After a minimum of one year on conditional release, the
committed person, with or without the recommendation or
concurrence of the Director of State Hospitals, may petition the
court for unconditional discharge. The court shall use the
procedures described in subdivisions (a) and (b) of Section 6605
to determine if the person should be unconditionally discharged
from commitment on the basis that, by reason of a diagnosed
mental disorder, he or she is no longer a danger to the health and
safety of others in that it is not likely that he or she will engage in
sexually violent criminal behavior.

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begin insert SEC. 2. end insert   

end insert

begin insert Section 6608.5 of the end insert begin insert Welfare and Institutions Code end insert
begin insert is amended to read: end insert

6608.5.  

(a) A person who is conditionally released pursuant
to this article shall be placed in the county of the domicile of the
person prior to the person’s incarceration begin insert for the commitment
offense end insert , unless the court finds that extraordinary circumstances
require placement outside the county of domicile. begin insert The court shall,
upon determining that the person shall be placed in a forensic
conditional release program, set a hearing for the determination
of the county of domicile. The court shall notify the attorney
designated in subdivision (i) of Section 6601 from the committing
county and the designated attorney from each county of potential
domicile, of the date of the hearing at least 15 calendar days before
the date of the hearing. Each of these attorneys shall be allowed
to conduct an examination of witnesses, regarding the
appropriateness of domicile in the attorney’s county. The court
shall determine the county of domicile after the presentation of
evidence, if any, by the designated attorneys. The court’s
determination shall be based on the factors set forth in subdivisions
(b) and (c). If the county of domicile is different than the county
of commitment, jurisdiction of the person shall be transferred to
the county of conditional release placement. end insert

(b) (1) For the purposes of this section, “county of domicile”
means the county where the person has his or her true, fixed, and
permanent home and principal residence and to which he or she begin insert ,
prior to the most recent commitment offense, end insert has manifested the
intention of returning whenever he or she is absent. For the
purposes of determining the county of domicile, the court may
consider information found on a California driver’s license,
California identification card, recent rent or utility receipt, printed
personalized checks or other recent banking documents showing
that person’s name and address, or information contained in an
arrest record, probation officer’s report, trial transcript, or other
court document. If no information can be identified or verified,
the county of domicile of the individual shall be considered to be
the county in which the person was arrested for the crime for which
he or she was last incarcerated in the state begin delete prison or from which
he or she was last returned from parole end delete begin insert prison end insert .

(2) In a case where the person committed a crime while being
held for treatment in a state hospital, or while being confined in a
state prison or local jail facility, the county wherein that facility
was located shall not be considered the county of domicile unless
the person resided in that county prior to being housed in the
hospital, prison, or jail.

(c) For the purposes of this section, “extraordinary
circumstances” means circumstances that would inordinately limit
the department’s ability to effect conditional release of the person
in the county of domicile in accordance with Section 6608 or any
other provision of this article, and the procedures described in
Sections 1605 to 1610, inclusive, of the Penal Code.

(d) The county of domicile shall designate a county agency or
program that will provide assistance and consultation in the process
of locating and securing housing within the county for persons
committed as sexually violent predators who are about to be
conditionally released under Section 6608. Upon notification by
the department of a person’s potential or expected conditional
release under Section 6608, the county of domicile shall notify the
department of the name of the designated agency or program, at
least 60 days before the date of the potential or expected release.

(e) In recommending a specific placement for community
outpatient treatment, the department or its designee shall consider
all of the following:

(1) The concerns and proximity of the victim or the victim’s
next of kin.

(2) The age and profile of the victim or victims in the sexually
violent offenses committed by the person subject to placement.
For purposes of this subdivision, the “profile” of a victim includes,
but is not limited to, gender, physical appearance, economic
background, profession, and other social or personal characteristics.

(f) Notwithstanding any other provision of law, a person released
under this section shall not be placed within one-quarter mile of
any public or private school providing instruction in kindergarten
or any of grades 1 to 12, inclusive, if either of the following
conditions exist:

(1) The person has previously been convicted of a violation of
Section 288.5 of, or subdivision (a) or (b), or paragraph (1) of
subdivision (c) of Section 288 of, the Penal Code.

(2) The court finds that the person has a history of improper
sexual conduct with children.

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begin insert SEC. 3. end insert   

end insert

begin insert Section 6608.8 of the end insert begin insert Welfare and Institutions Code end insert
begin insert is amended to read: end insert

6608.8.  

(a) For any person who is proposed for community
outpatient treatment under the forensic conditional release program,
the department shall provide to the court a copy of the written
contract entered into with any public or private person or entity
responsible for monitoring and supervising the patient’s outpatient
placement and treatment program. This subdivision does not apply
to subcontracts between the contractor and clinicians providing
treatment and related services to the person.

(b) The terms and conditions of conditional release shall be
drafted to include reasonable flexibility to achieve the aims of
conditional release, and to protect the public and the conditionally
released person. begin insert In order to protect the public and the conditionally
released person, the person shall, during the term of the conditional
release, submit his or her person and property to search and
seizure at any time, day or night, by any law enforcement officer
or peace officer, with or without probable cause or reasonable
suspicion. end insert

(c) The court in its discretion may order the department to,
notwithstanding Section 4514 or 5328, provide a copy of the
written terms and conditions of conditional release to the sheriff
or chief of police, or both, that have jurisdiction over the proposed
or actual placement community.

(d) (1) Except in an emergency, the department or its designee
shall not alter the terms and conditions of conditional release
without the prior approval of the court.

(2) The department shall provide notice to the person committed
under this article and the district attorney or designated county
counsel of any proposed change in the terms and conditions of
conditional release.

(3) The court on its own motion, or upon the motion of either
party to the action, may set a hearing on the proposed change. The
hearing shall be held as soon as is practicable.

(4) If a hearing on the proposed change is held, the court shall
state its findings on the record. If the court approves a change in
the terms and conditions of conditional release without a hearing,
the court shall issue a written order.

(5) In the case of an emergency, the department or its designee
may deviate from the terms and conditions of the conditional
release if necessary to protect public safety or the safety of the
person. If a hearing on the emergency is set by the court or
requested by either party, the hearing shall be held as soon as
practicable. The department, its designee, and the parties shall
endeavor to resolve routine matters in a cooperative fashion without
the need for a formal hearing.

(e) Notwithstanding any provision of this section, including,
but not limited to, subdivision (d), matters concerning the
residential placement, including any changes or proposed changes
in the residence of the person, shall be considered and determined
pursuant to Section 6609.1.