BILL ANALYSIS �
AB 1607
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Date of Hearing: April 29, 2014
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1607 (Fox) - As Amended: March 24, 2014
As Proposed to be Amended in Committee
SUMMARY : Requires, prior to the court holding a conditional
release hearing for a person committed to the Department of
State Hospitals (DSH) as a sexually-violent predator (SVP), the
court to determine the SVP's county of domicile, as specified,
and allows the designated attorney of the determined county of
domicile to elect to represent the state at the conditional
release hearing. Specifically, this bill :
1)Provides that a person petitioning for conditional release is
entitled to assistance of counsel in the conditional release
and county of domicile hearings.
2)Provides that the procedure for a conditional release hearing
in a case in which the county of domicile has not yet been
determined by the court to proceed as follows:
a) Requires the court, upon deeming that a conditional
release petition is not frivolous, to provide notice to the
attorney for the committed person, the designated attorney
for the county of commitment, and the Director of State
Hospitals of its intent to set a conditional release
hearing, and requires these entities to notify the court
within 30 court days of receiving the notice of intent if
it is alleged that a county other than the county of
commitment is the domicile county.
b) Requires the court to deem the county of commitment as
the county of domicile and set a date for the conditional
release hearing, with at least 30 court days notice, as
specified, if no county, other than the county of
commitment, is alleged to be the county of domicile.
c) Requires the court to hold a hearing to determine the
county of domicile if one or more county, other than the
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county of commitment, is alleged to be the county of
domicile. Allows the designated attorney for any alleged
county of domicile, the attorney for the county of
commitment, the attorney for the petitioner, and the
Director of State Hospitals to file and serve declarations,
documentary evidence, and other pleadings, specific to the
issue of domicile only, at least 10 court days prior to the
hearing. Allows the court, in its discretion, to decide
the issue of domicile based upon the pleadings alone or
permit such additional argument and testimony as is in the
interest of justice.
d) Requires the court, after determining county of
domicile, to set a date for a conditional release hearing
and give notice of the hearing, as specified, including to
the designated attorney for the county of domicile at least
30 court days before the date of the hearing.
e) Provides that the designated attorney of the domicile
county has the right to represent the state at the
conditional release hearing, and to provide notice to
parties, as specified, if he or she elects to do so.
Requires the designated attorney for the commitment county
to cooperate with the designated attorney for the domicile
county if this election is made.
f) Provides that the court's determination of a county of
domicile is final and applies to future proceedings
relative to the commitment or release of a SVP.
3)Provides that the procedure for a conditional release hearing
in a case in which the county of domicile has not yet been
determined by the court to proceed as follows:
a) Requires the court, upon deeming that a conditional
release petition is not frivolous, to provide notice to the
attorney for the committed person, the designated attorney
for the county of commitment, and the Director of State
Hospitals of the date of the conditional release hearing at
least 30 days prior to the hearing.
b) Provides that representation of the state at the
conditional release hearing is by the designated attorney
for the domicile county, if he or she so elects; otherwise
the designated attorney for the commitment county will
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represent the state.
4)Provides, if a committed person has been conditionally
released by a court to a county other than the county of
domicile and the jurisdiction of the person has been
transferred to that county, the notice required for a
subsequent conditional release hearing is to be given to the
designated attorney of the county of placement, who will
represent the state in any further proceedings.
5)Provides that if the committed person has been placed on
conditional release in a county other than the county of
commitment, jurisdiction of the person shall, upon the request
of the designated attorney of the county of placement, be
transferred to that county.
6)Defines specified terms.
EXISTING LAW :
1)Provides for the civil commitment for psychiatric and
psychological treatment of a prison inmate found to be a SVP
after the person has served his or her prison commitment.
(Welf. & Inst. Code, � 6600, et seq.)
2)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." (Welf. & Inst. Code, � 6600, subd.
(a)(1).)
3)Permits a person committed as a SVP to be held for an
indeterminate term upon commitment. (Welf. & Inst. Code, �
6604.1.)
4)Requires that a person found to have been a SVP and committed
to the DSH have a current examination on his or her mental
condition made at least yearly. The report shall include
consideration of conditional release to a less restrictive
alternative or an unconditional release is in the best
interest of the person and also what conditions can be imposed
to adequately protect the community. (Welf. & Inst. Code, �
6604.9.)
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5)Allows a SVP to seek conditional release with the
authorization of the Director of State Hospitals when DSH
determines that the person's condition has so changed that he
or she no longer meets the SVP criteria, or when conditional
release is in the person's best interest and conditions to
adequately protect the public can be imposed. (Welf. & Inst.
Code, � 6607.)
6)Allows a person committed as a SVP to petition for conditional
release or an unconditional discharge any time after one year
of commitment, notwithstanding the lack of recommendation or
concurrence by the Director of DSH. (Welf. & Inst. Code, �
6608, subd. (a).)
7)Provides that, if the court deems the conditional release
petition not frivolous, the court is to give notice of the
hearing date to the attorney designated to represent the
county of commitment, the retained or appointed attorney for
the committed person, and the Director of State Hospitals at
least 30 court days before the hearing date. (Welf. & Inst.
Code, � 6608, subd. (b).)
8)Requires the court to first obtain the written recommendation
of the director of the treatment facility before taking any
action on the petition for conditional release if the is made
without the consent of the director of the treatment facility.
(Welf. & Inst. Code, � 6608, subd. (c).)
9)Provides that 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. Provides that the attorney designated the
county of commitment shall represent the state and have the
committed person evaluated by experts chosen by the state and
that the committed person shall have the right to the
appointment of experts, if he or she so requests. (Welf. &
Inst. Code, � 6608, subd. (e).)
10)Requires the court to order the committed person placed with
an appropriate forensic conditional release program operated
by the state for one year if the court at the hearing
determines that the committed person would not be a danger to
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others due to his or her diagnosed mental disorder while under
supervision and treatment in the community. Requires a
substantial portion of the state-operated forensic conditional
release program to include outpatient supervision and
treatment. Provides that the court retains jurisdiction of the
person throughout the course of the program. (Welf. & Inst.
Code, � 6608, subd. (e).)
11)Provides that 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. (Welf. & Inst. Code, �
6608, subd. (h)
12)Allows, 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, to petition
the court for unconditional discharge, as specified. (Welf. &
Inst. Code, � 6608, subd. (k).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Nearly a year
ago a Judge in Santa Clara County determined that a sexually
violent predator be conditionally released from the Department
of State Hospitals to Los Angeles County. The offender has
not lived in Los Angeles County in over 40 years. His last
crimes were committed in Santa Clara County. Santa Clara
County is now overseeing his placement in unincorporated Los
Angeles County.
"It is politically expedient for one county to send high-risk
individuals to another county under the Sexual Violent
Predator Act. No community wants them. However, when your
community is receiving the individual, it's unconscionable.
Santa Clara County should have told Los Angeles County what
was going on. The Department of State Hospitals should have
told Los Angeles what was going on. But they didn't. They
don't have to under current law.
"AB 1607 will help to rectify current law so that what is
happening in my community does not happen in others."
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2)SVP Law Generally : The Sexually Violent Predator Act (SVPA)
establishes an extended civil commitment scheme for sex
offenders who are about to be released from prison, but are
referred to the DSH for treatment in a state hospital, because
they have suffered from a mental illness which causes them to
be a danger to the safety of others.
The Department of State Hospitals uses specified criteria to
determine whether an individual qualifies for treatment as a
SVP. Under existing law, a person may be deemed a SVP if:
(a) the defendant has committed specified sex offenses against
two or more victims; (b) the defendant has a diagnosable
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; and, (3) two
licensed psychiatrists or psychologists concur in the
diagnosis. If both clinical evaluators find that the person
meets the criteria, the case is referred to the county
district attorney who may file a petition for civil
commitment.
Once a petition has been filed, a judge holds a probable cause
hearing; and if probable cause if found, the case proceeds to
a trial at which the prosecutor must prove to a jury beyond a
reasonable doubt that the offender meets the statutory
criteria. The state must prove "[1] a person who has been
convicted of a sexually violent offense against [at least one]
victim[] and [2] who has a diagnosed mental disorder that [3]
makes the person a danger to the health and safety of others
in that it is likely that he or she will engage in [predatory]
sexually violent criminal behavior." (Cooley v. Superior
Court (Martinez) (2002) 29 Cal.4th 228, 246.) If the
prosecutor meets this burden, the person then can be civilly
committed to a DSH facility for treatment.
The Department of State Hospitals must conduct a yearly
examination of a SVP's mental condition and submit an annual
report to the court. This annual review includes an
examination by a qualified expert. (Welf. & Inst. Code, �
6604.9.) In addition, DSH has an obligation to seek judicial
review any time it believes a person committed as a SVP no
longer meets the criteria, not just annually. (Welf. & Inst.
Code, � 6607.)
The SVPA was substantially amended by Proposition 83
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("Jessica's Law"), which became operative on November 7, 2006.
Originally, a SVP commitment was for two years; but now,
under Jessica's Law, a person committed as a SVP may be held
for an indeterminate term upon commitment or until it is shown
that the defendant no longer poses a danger to others. (See
People v. McKee (2010) 47 Cal. 4th 1172, 1185-87.) Jessica's
Law also amended the SVPA to make it more difficult for SVPs
to petition for less restrictive alternatives to commitment.
These changes have survived due process, ex post facto, and,
more recently, equal protection challenges. (See People v.
McKee, supra, 47 Cal. 4th 1172 and People v. McKee (2012) 207
Cal.App.4th 1325.)
3)Obtaining Release From Commitment : A person committed as a
SVP may petition the court for conditional release or
unconditional discharge after one year of commitment. (Welf.
& Inst. Code, � 6608, subd. (a).) The petition can be filed
with, or without, the concurrence of the Director of State
Hospitals. The Director's concurrence or lack thereof makes a
difference in the process used.
A SVP can, with the concurrence of the Director of State
Hospitals, petition for unconditional discharge if the patient
"no longer meets the definition of a SVP," or for conditional
release. (Welf. & Inst. Code, � 6604.9, subd. (d).) If an
evaluator determines that the person no longer qualifies as a
SVP or that conditional release is in the person's best
interest and conditions can be imposed to adequately protect
the community, but the Director of State Hospitals disagrees
with the recommendation, the Director must nevertheless
authorize the petition. (People v. Landau (2011) 199
Cal.App.4th 31, 37-39.) When the petition is filed with the
concurrence of the DSH, the court order a show cause hearing.
(Welf. & Inst. Code, � 6604.9, subd. (f).) If probable cause
is found, the patient thereafter has a right to a jury trial
and is entitled to relief unless the district attorney proves
"beyond a reasonable doubt that the committed person's
diagnosed mental disorder remains such that he or she is a
danger to the health and safety of others and is likely to
engage in sexually violent behavior if discharged." (Welf. &
Inst. Code, � 6605.)
A committed person may also petition for conditional release or
unconditional discharge notwithstanding the lack of
recommendation or concurrence by the Director of State
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Hospitals. (Welf. & Inst. Code, � 6608, subd. (a).) Upon
receipt of this type of petition, 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." (Welf. & Inst. Code, � 6608,
subd. (a).)<1> If the petition is not found to be frivolous,
the court is required to hold a hearing. (People v. Smith
(2013) 216 Cal.App.4th 947.)
The SVPA does not define the term "frivolous." The courts have
applied the definition of "frivolous" found in Code of Civil
Procedure section 128.5, subdivision (b)(2): "totally and
completely without merit" or "for the sole purpose of
harassing an opposing party." (People v. Reynolds (2010) 181
Cal.App.4th 1402, 1411; see also People v. McKee, supra, 47
Cal.4th 1172; People v. Collins (2003) 110 Cal.App.4th 340,
349.) Additionally, in Reynolds, supra, 181 Cal.App.4th at p.
1407, the court interpreted Welfare and Institutions Code
section 6608 to require the petitioner to allege facts in the
petition that will show he or she is not likely to engage in
sexually-violent criminal behavior due to a diagnosed mental
disorder, without supervision and treatment in the community,
since that is the relief requested.
Once the court sets the hearing on the petition, then the
petitioner is entitled to both the assistance of counsel, and
the appointment of an expert. (People v. McKee, supra, 47
Cal.4th 1172, 1193.) At the hearing, the person petitioning
for release has the burden of proof by a preponderance of the
evidence. (Welf. & Inst. Code, � 6608, subd. (i); People v.
Rasmuson (2006) 145 Cal.App.4th 1487, 1503.) If the petition
---------------------------
<1> Recently, in People v. McCloud (2013) 213 Cal.App.4th 1076,
the Court of Appeal recognized that the provision in Welfare and
Institutions Code section 6608, subdivision (a) allowing for
dismissal of a frivolous petition for release without a hearing,
may violate the equal protection clause. The petitioner's equal
protection claim was based on the fact that "[n]o other
commitment scheme allows the judge to deem the petition
'frivolous' and thereby deny the petitioner a hearing." (Id. at
p. 1087.) The court found there might well be actual disparate
treatment of similarly situated persons-and if there was
disparate treatment, the State might or might not be justified
in so distinguishing between persons. The court remanded the
case for further proceedings on the equal protection claim.
(Id. at p. 1088.)
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is denied, the SVP may not file a subsequent petition until
one year from the date of the denial. (Welf. & Inst. Code, �
6608, subd. (h).)
4)Argument in Support : According to the Los Angeles County
District Attorney's Office , "AB 1607 corrects the [problem in
current law] by providing for a hearing by declaration to
determine the county of domicile. Any county alleged to be the
county of domicile would be given notice and an opportunity to
participate in the proceeding. The designated attorney
(usually the district attorney) of the county held to be of
domicile could then elect to represent the state at the
conditional release hearing.
"Under current law, the court in the county of commitment may
place the SVP in another county, sometimes a county on the
other end of the state. However, the court of commitment
retains jurisdiction of all future matters. Thus, when the
case comes up for review or the SVP is alleged to have
committed a new crime, or otherwise violated the terms and
conditions of release, the district attorney, the witnesses,
the persons supervising the SVP and others must be transported
to the commitment county for the hearing. Since multiple
hearings are often necessary, this is a substantial expense
for the placement county. Moreover, a local court is in a much
better position to effectively supervise an SVP placed in its
jurisdiction.
"AB 1607 addresses the problem by permitting transfer of the
jurisdiction of the SVP case to the county in which the SVP
has been placed. This is the current practice when a person on
parole or probation is transferred to another county for
supervision. It is also the correct approach for SVP cases.
"Sexually violent predators are among the most dangerous
offenders. AB 1607 will promote public safety and help to
prevent future victimization by assuring district attorneys
receive notice and an opportunity to be heard regarding the
pending release of these offenders and that local courts be
granted jurisdiction of an SVP placed in their communities."
5)Arguments in Opposition :
a) As argued by California Attorneys for Criminal Justice ,
"[t]his bill is a reaction to a problem that does not
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exist, making NIMBY (Not In My Back Yard) a statutory
mandate. Since 2006, the California Sex Offender
Management Board has warned of the perils that result from
restrictive legislation that causes the majority of
California sex offenders to be homeless. ? This proposed
bill is an overly broad, expensive, and unjustified
restrictive piece of legislation."
b) Taxpayer for Improving Public Safety argues that "[t]his
legislation is an attempt to use the judicial process to
deny registered sex offenders a local to reside through the
district attorney or city attorney seeking a judicial
determination that the parolee should not reside in a
community. No elected official, judge, legislator or
public prosecutor will ever approve a residential location
within the district in which they must seek election or
re-election."
6)Prior Legislation :
a) AB 768 (Achadjian), of this Legislative Session, would
have prohibited a SVP granted conditional release from
being released as a transient or placed in housing
consisting of a recreational or other vehicle and would
have declared that extraordinary circumstances justifying
the placement of a person who has been granted conditional
release in a county other than his or her county of
domicile are present when housing cannot be located within
the county of domicile within 180 days of the conditional
release order. AB 768 failed passage in this committee.
b) SB 295 (Emmerson), Chapter 182, Statutes of 2013,
revised the procedures to be used by the courts for SVP
petitions, whether with or without DSH concurrence, for
conditional release and unconditional discharge.
c) AB 421 (Smyth), of the 2011-12 Legislative Session, made
procedural changes in SVP commitment proceedings. AB 421
failed passage in this committee.
d) SB 179 (Pavley), Chapter 359, Statutes of 2011, tolls
the parole period for any person subject to a SVP
proceeding upon a finding of probable cause through release
from dismissal of proceeding or release from confinement.
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e) Proposition 83 ("Jessica's Law"), operative on November
7, 2006, and SB 1128 (Alquist), Chapter 337, Statutes of
2006, made numerous changes to sex offender and SVP law,
including making commitment terms indefinite.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County Board of Supervisors (Co-Sponsor)
Los Angeles County District Attorney (Co-Sponsor)
Association of Los Angeles Deputy Sheriffs
California District Attorneys Association
Crime Victims United of California
Los Angeles Police Protective League
Riverside Sheriffs' Association
Urban Counties Caucus
Opposition
California Attorneys for Criminal Justice
Disability Rights California
Taxpayers for Improving Public Safety
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744