BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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6
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AB 1607 (Fox) 7
As Amended May 6, 2014
Hearing date: June 24, 2014
Welfare & Institutions Code
JM:mc
CONDITIONALLY RELEASED SEXUALLY VIOLENT PREDATOR PATIENTS:
COUNTY OF PLACEMENT
HISTORY
Source: Los Angeles County District Attorney; Los Angeles
County Board of Supervisors
Prior Legislation: SB 295 (Emmerson) - Ch. 182, Stats. 2013
SB 179 (Pavley) - Ch. 359, Stats. 2011
Proposition 83 of the November 7, 2006 General
Election
AB 893 (Shirley Horton) - Ch. 162, Stats. 2005
AB 2450 (Canciamilla) - Ch. 425, Stats. 2004
AB 1142 (Runner) - Ch. 323, Stats. 2001
SB 2018 (Schiff) - Chapter 420, Stats.
2000
SB 451 (Schiff) - Ch. 41, Stats. 2000
AB 2849 (Havice) - Ch. 643, Stats. 2000
SB 746 (Schiff) - Ch. 995, Stats. 1999
SB 11 (Schiff) - Ch. 136, Stats. 1999
SB 1976 (Mountjoy) - Ch. 961, Stats. 1998
AB 888 (Rogan) - Ch. 763, Stats. 1995
SB 1143 (Mountjoy) - Ch. 764, Stats 1995
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Support: Urban Counties Caucus; City of Palmdale; California
District Attorneys Association
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUE
SHOULD THE MOST APPROPRIATE COUNTY OF PLACEMENT OF A CONDITIONALLY
RELEASED SEXUALLY VIOLENT PREDATOR (SVP) PATIENT BE DETERMINED BY A
COURT HEARING INVOLVING THE COURT, THE COUNTY OF COMMITMENT AND EACH
COUNTY THAT COULD BE DETERMINED TO BE THE PERSON'S DOMICILE?
PURPOSE
The purpose of this bill is to provide that the county of
domicile of a conditionally released Sexually Violent Predator
(SVP) patient - the county to which the person will be released
- shall be determined by a newly defined process involving the
court, the county of commitment and each county that could be
determined to be the county of domicile.
Existing law provides for the civil commitment for psychiatric
and psychological treatment of a prison inmate found to be a
sexually violent predator (SVP) after the person has served his
or her prison commitment. (Welf. & Inst. Code, � 6600, et seq.)
Existing law defines an SVP 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).)
Existing law provides that a person committed as a SVP shall be
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held for an indeterminate term upon commitment. (Welf. & Inst.
Code, � 6604.1.)
Existing law requires that an SVP patient have an annual
examination on his mental condition. The report on the
examination shall include consideration of whether or not
conditional release to a less restrictive alternative or an
unconditional release is in the SVP patient's best interest and
what conditions would adequately protect the community. (Welf.
& Inst. Code, � 6604.9.)
Existing law provides that if DSH determines that the an SVP
patient's condition has so changed that he or she no longer
meets the SVP criteria, or that he can be safely and
conditionally released under supervision, the SVP patient can
file a petition for unconditional release or a petition for
conditional release. (Welf. & Inst. Code, � 6604.9.)
Existing law provides that upon receipt of a petition for
unconditional release, the court shall set a hearing to
determine if there is probable cause that the SVP patient "has
so changed that he or she is not a danger to the health and
safety of others and is not likely to engage in sexually violent
criminal behavior. If the court finds probable to support such
a finding, the matter shall be set for a jury trial as though it
were an original petition for commitment. (Welf. & Inst. Code,
�� 6604.9 and 6605.)
Existing law provides that if DSH, independent of the annual
review and report of an SVP's mental condition, that the SVP
patient can be safely and conditionally released under
supervision, the court shall forward a report and recommendation
for conditional release to the prosecutor and the attorney for
the SVP patient. (Welf. & Inst. Code, � 6607.)
Existing law provides that if DSH does not concur that an SVP
can be safely and conditionally released under supervision, the
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SVP can petition for conditional release or an unconditional
discharge any time after one year of commitment. (Welf. & Inst.
Code � 6608, subd. (a).)
Existing law provides that, if the court finds the conditional
release petition is not frivolous, the court shall give notice
of the hearing date to the attorney designated to represent the
county of commitment, the 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).)
Existing law provides that where DSH in the annual report on the
mental status of an SVP patient finds that the conditional
discharge would be in the best interests of the patient under
conditions that would protect the public, the following shall:
The state shall have the burden of proof by a
preponderance of the evidence that the SVP would be
likely to commit sexually violent offenses if conditionally
released.
If the petition for conditional release is denied by
court, the SVP may not file another petition for
conditional release for one year. (Welf. & Inst. Code �
6608, subd. (i)
Existing law provides that if in the annual report DSH does no
find that conditional discharge is appropriate, the SVP patient
shall have the burden of proof by a preponderance of the
evidence at the hearing. (Welf. & Inst. Code � 6608, subd.
(i).)
Existing law 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).)
Existing law provides that the court shall hold a hearing to
determine whether the person committed would be a danger to the
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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
Existing law 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).)
Existing law requires the court to order the committed person
placed with an appropriate forensic conditional release program
(CONREP) operated by the state for one year 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.
Existing law provides that a substantial portion of SVP CONREP
shall include outpatient supervision and treatment. The court
shall retain jurisdiction of the person throughout the course of
the program. (Welf. & Inst. Code � 6608, subd. (e).)
Existing law 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)
Existing law 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. If the court finds probable cause that the person is
no longer an SVP, the court shall set the matter for jury trial.
The state shall bear the burden to prove beyond a reasonable
doubt that the person remains an SVP. (Welf. & Inst. Code ��
6605, subds. (a)-(b) and 6608, subd. (k).)
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This bill provides that a person petitioning for conditional
release is entitled to assistance of counsel in the conditional
release and county of domicile hearings.
This bill 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, proceed as follows:
The court, upon deeming that a conditional release
petition is not frivolous, shall 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.
The court shall 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.
The court shall hold a hearing to determine the county
of domicile if any other county, other than the 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.
The court, after determining county of domicile, shall
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.
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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.
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.
This bill 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, 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
represent the state.
This bill 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.
This bill 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
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transferred to that county.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
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capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
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design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for this Bill
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
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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."
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
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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 ("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, 1185-1187.) 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.)
The standards and procedures for conditional release proceedings
were changed by SB 295 (Emmerson) Ch. 182, Stats. 2013.
3. Standards and Procedures under which an SVP Patient can Obtain
Conditional or Unconditional Release
A person committed as a SVP may petition the court for
conditional release or unconditional discharge after one year of
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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 does, however, make 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 if he can be
safely and conditionally released under supervision (Welf. &
Inst. Code � 6604.9, subd. (d).)
When SVP patient then files a petition for unconditional release
the court orders a show cause hearing. (Welf. & Inst. Code �
6604.9, subd. (f).)<1> 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.) If the SVP patient
has filed a petition for conditional release, the court employs
the procedures set out in Section 6608 for hearings on
conditional release
A committed person may also petition for conditional release and
eventual unconditional discharge notwithstanding the lack of
recommendation or concurrence by the Director of State
Hospitals. (Welf. & Inst. Code, � 6608, subd. (a).) The court
"shall endeavor whenever possible to review the petition [filed
without the concurrence of DSH] and determine if it is based
upon frivolous grounds and, if so, shall deny the petition
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<1> 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.)
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without a hearing." (Welf. & Inst. Code, � 6608, subd. (a).)<2>
If the petition is not found to be frivolous, the court shall
hold a hearing to determine if the person can be safely released
under supervision. (People v. Smith (2013) 216 Cal.App.4th
947.)
The SVPA does not define the term "frivolous." The courts have
applied the definition of the term stated 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 if DSH does not agree that the person can be safely
released under supervision If DSH concurs with the petition -
agreeing that he can be conditionally released under supervision
that would protect the public, the SVP patient has the burden of
proof. (Welf. & Inst. Code, � 6608, subd. (i); People v.
Rasmuson (2006) 145 Cal.App.4th 1487, 1503.) If the petition is
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<2> 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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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. Controversy over Placement of Released SVP Patients
From the enactment of the SVP law, communities have objected to
placement of conditionally and unconditionally released SVPs.
DSH and its contractors have had great difficulty finding
housing for released SVP patients. Especially for the first
patients to be released, DSH moved them constantly to avoid
public outrage. At least one person - Timothy Lee Boggs - was
released without a specified residence after the court found
that it had no power to keep him involuntarily confined.<3>
Other released patients have been placed in housing on the
grounds of prisons, although not within the secure perimeter of
the institutions. (AB 893 (Shirley Horton) Ch. 162 Stats.
2005.)
Nevertheless, a conditionally released SVP patient must be
placed somewhere. Prior bills required that the person be
returned to the county of domicile, unless extraordinary
circumstances are found, although the court proceeding occur in
the county in which the defendant was sentenced to prison and
later involuntarily committed to the SVP program. (AB 493
(Salinas) Ch. 222, Stats. 2004; SB 723 (Denham) Ch. 486, Stats.
2005.) This bill seeks to require some coordination and
cooperation among the counties where the SVP patient could be
conditionally released.
5. Due Process Concerns - Delays in Conditional Release
Hearings
Existing law gives SVP patients the right to petition for
condition release, with or without the concurrence or support of
DSH. Arguably, a finding in an annual report that an SVP
patient can be safely released under supervision creates a
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<3> http://articles.latimes.com/2006/jul/16/local/me-offend16.
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presumption that the person should be released, or at least
creates a prima facie case for release. Delaying the hearing of
the release for the convenience of the counties into which the
person could be safely placed might be challenged on due process
grounds, as the state may not make it overly burdensome for an
SVP to seek and obtain conditional release, especially where DSH
concurs with the petition. (People v. McKee (2012) 47 Cal.4th
1172, 1192-1193 People v. Smith (2013) 212 Cal.App.4th 1398,
1405.)
This bill creates new court proceedings for determining the
domicile of a conditionally released SVP patient. Existing law
provides that the court shall give notice to the prosecutor, the
attorney for the SVP and DSH that it will hold a hearing on
conditional release at least 30 days prior to the hearing.
Under this bill, where more than one county could be the SVP
patient's domicile, the court must give at least 30-days' notice
of a hearing to determine domicile. A county receiving notice
that it could be designated as the domicile of an SVP patient
may submit declarations, documents and pleadings on the issue.
The court can determine the issue on the pleadings, or it can
set the matter for hearing with live testimony and arguments.
After determining domicile, the court must give at least
30-days' notice of the date of the hearing on the actual issue
of conditional release to the prosecutor representing the state,
the attorney for the SVP patient and DSH. An additional
20-days' notice may be required. Under this process, the
decision on conditional release could be delayed for six months
or more, creating grounds for a due process claim.
6. Expansion of Eligibility for SVP Evaluation in 2006 have
Strained the Ability of DMH to Perform SVP Commitment
Evaluations
Proposition 83 of the 2006 General Election (Jessica's Law)
changed the basic criteria for evaluation of an inmates as an
SVP. Previously, a person could be evaluated as an SVP if he<4>
committed predatory sexual crimes against more than one victim.
Pursuant to the changes made by Proposition 83, an inmate may
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<4> Virtually all SVPs are men.
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be evaluated as a possible SVP if he committed a predatory
sexual offense against one person. A predatory offense is one
committed against a stranger or a person with whom the
perpetrator cultivated a relationship for purposes of abuse.
CDCR must examine prison records to find any inmate who has been
convicted of a qualifying sex crime (most sex crimes qualify)
against a non-family member. Such inmates are then referred to
DMH for full evaluation. After an initial evaluation by trained
screeners, these inmates are referred to expert psychiatrists or
psychologists for full evaluation.
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The changes in criteria for evaluation of potential SVPs have
increased the number of evaluations performed by DMH experts 10
fold, from approximately 50 to 500 per month. DMH, or any
agency, would be hard-pressed to meet such a challenge.
This bill is sponsored by the Los Angeles County District
Attorney. In perhaps a preview of conditional release
proceedings to come, the sponsor has been negotiating with other
district attorneys about the provisions in this bill.
Proposed Amendment 1: This amendment provides that if the
district attorney in the county of domicile and the district
attorney in the county of commitment do not agree that the
district attorney in the county of domicile will represent the
state in the conditional release proceedings, the district
attorney in the county of commitment shall do so. One of the
most important subjects in the discussions on the bill has been
the issue of which county will represent the state in the
hearing on conditional release if the county of domicile and the
county of commitment are not the same. The bill as amended on
May 6, 2014 - how it appears on the date of this hearing -
provides that the district attorney in the county of domicile -
the county of release - would represent the state in those
circumstances. This amendment also provides that the district
attorney in each county should cooperate to ensure that all
relevant evidence is submitted in the conditional release
hearing. The amendments do not change the rule that the
prosecutor in the county of placement shall represent the state
in future proceedings concerning the release status of the SVP.
Proposed Amendment 2: This amendment clarifies that a court's
determination of a county of domicile shall govern the current
conditional release proceeding and any subsequent petition for
conditional release. This language was suggested by the
Judicial Council. This amendment appears to be intended to
provide finality and certainty in often contentious SVP
proceedings. Significant resources of the courts, counties and
the state would be expended to re-litigate this issue. Elected
prosecutors could face pressure to challenge the determination
of the county of domicile, even where the basis of the challenge
(More)
AB 1607 (Fox)
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is relatively weak. (Welf. & Inst. Code � 6608 (b) (9).)
Proposed Amendment 3: This amendment clarifies and reiterates
the existing rules that an SVP cannot be placed in a county
other that the county of domicile or commitment unless that
county has received prior notice and an opportunity to comment
on the proposed placement. Under the amendments, notice is a
condition of the decision to place an SVP in a county other than
the county of domicile, not only a duty of DSH. As noted
throughout this analysis, placement of released SVP patients is
a very contentious issue. It appears that no county has openly
welcomed an SVP placement. SVP law authorizes placement to a
county other than the county of domicile if "extraordinary
circumstances require placement outside the county of domicile."
This authority is necessary in cases where there are no
appropriate outpatient treatment programs in the county of
commitment or there is some other extraordinary impediment to
placement in the county of domicile. However, the district
attorney in the county of domicile could face substantial
pressure to challenge placement in that county and argue that
circumstances require placement in another county. Notice and
comment provisions were first enacted in the late 1990's,
shortly after enactment of the SVP law. Numerous bills since
that time, often introduced in response to public outrage over
an SVP placement, have expanded notification and comment
requirements. (Welf. & Inst. Code �� 6608.5, subd. (a) and
6609.1.)
Additional amendments are technical and clarifying.
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