Bill Text: CA SB295 | 2013-2014 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

---

Bill Title: Sexually violent predators: civil commitment.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Passed) 2013-08-27 - Chaptered by Secretary of State. Chapter 182, Statutes of 2013. [SB295 Detail]

Download: California-2013-SB295-Amended.html

---

BILL NUMBER: SB 295	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MARCH 21, 2013

INTRODUCED BY   Senator Emmerson

                        FEBRUARY 15, 2013

   An act to amend  Section 4905   Sections 6605
and 6608  of the Welfare and Institutions Code, relating to
 developmental services.   sexually violent
predators. 


	LEGISLATIVE COUNSEL'S DIGEST


   SB 295, as amended, Emmerson.  Developmental services:
protection and advocacy agencies.   Sexually violent
predators: civil commitment.  
   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 or unconditional discharge.
Proposition 83 of the November 7, 2006, statewide general election,
made various changes to the sexually violent predator civil
commitment process.  
   Proposition 83 permits the Legislature to amend its provisions,
either by a 2/3 vote of the membership of each house, or by a
majority vote of the membership of each house if the amendments
expand the scope of the application of the provisions of the
proposition or increase the punishments or penalties provided in the
proposition.  
   This bill would clarify which provisions are to be used when a
committed person petitions for conditional release and which
provisions are to be used when a committed person petitions for
unconditional discharge. The bill would also require the community
program director designated by the State Department of State
Hospitals to submit a report to the court in response to the petition
that makes a recommendation as to the appropriateness of placement
of the person in a state-operated forensic conditional release
program before a hearing can be held. The bill would require, as part
of the conditional release hearing, that a designated attorney
represent the state and have the committed person evaluated by
experts chosen by the state. The bill would also prohibit, if
unconditional discharge is denied, the committed person from
petitioning for unconditional discharge for one year.  
   Existing law prohibits action on a petition for conditional
release that was not made by the director of the treatment facility
to which the person is committed without first obtaining the written
recommendation of the director of the treatment facility.  
   This bill would, instead, prohibit action on a petition for
conditional release that was not made with the recommendation or
concurrence of the Director of State Hospitals without first
obtaining the written recommendation of the Director of State
Hospitals.  
   Existing law, the Lanterman Developmental Disabilities Services
Act, requires the State Department of Developmental Services to
contract with appropriate agencies to provide community services and
support for persons with developmental disabilities and their
families, including, but not limited to, regional centers, and sets
forth the duties of the regional centers, including, but not limited
to, development of individual program plan and the purchase of needed
services to implement the plan. Existing law prohibits an employee
or agent of a facility, program or service from subjecting a person
with a disability to reprisal or harassment that would prevent the
person, his or her legally authorized representative, or family
member from reporting to the protection and advocacy agency
designated by the Governor information pertaining to suspected abuse,
neglect, or other violations of the person's rights. 

   This bill would make technical, nonsubstantive changes to those
provisions. 
   Vote:  majority   2/3  . Appropriation:
no. Fiscal committee:  no   yes  .
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 6605 of the   Welfare
and Institutions Code  is amended to read: 
   6605.  (a) A person found to be a sexually violent predator and
committed to the custody of the State Department of State Hospitals
shall have a current examination of his or her mental condition made
at least once every year. The annual report shall include
consideration of whether the committed person currently meets the
definition of a sexually violent predator and whether conditional
release to a less restrictive alternative  , pursuant to the
procedure described in Section 6608,  or an unconditional
 release   discharge, pursuant to the procedure
described in this   section,  is in the best interest
of the person and conditions can be imposed that would adequately
protect the community. The State Department of State Hospitals shall
file this periodic report with the court that committed the person
under this article. The report shall be in the form of a declaration
and shall be prepared by a professionally qualified person. A copy of
the report shall be served on the prosecuting agency involved in the
initial commitment and upon the committed person. The person may
retain, or if he or she is indigent and so requests, the court may
appoint, a qualified expert or professional person to examine him or
her, and the expert or professional person shall have access to all
records concerning the person.
   (b) If the State Department of State Hospitals determines that
either: (1) the person's condition has so changed that the person no
longer meets the definition of a sexually violent predator  and
should, therefor, be considered for   unconditional
discharge  , or (2) conditional release to a less restrictive
alternative is in the best interest of the person and conditions can
be imposed that adequately protect the community, the director shall
authorize the person to petition the court for conditional release to
a less restrictive alternative or for an unconditional discharge.
The petition shall be filed with the court and served upon the
prosecuting agency responsible for the initial commitment. 
The 
    (c)     (1)     The 
court, upon receipt of the petition for conditional release to a
less restrictive alternative  or   , shall
consider that petition using the procedures described in subdivisions
(c) to (j), inclusive, of Section 6608. 
    (2)     The court, upon receiving a
petition for  unconditional discharge, shall order a show cause
hearing  , pursuant to paragraph (3),  at which the court
can consider the petition and any accompanying documentation provided
by the medical director, the prosecuting attorney, or the committed
person. 
   (c) 
    (3)  If the court at the show cause hearing determines
that  the committed person has shown  probable cause
 exists  to believe that  the committed
person's   his or her  diagnosed mental disorder
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 discharged, then the court shall set a hearing
on the issue.
   (d) At the hearing, the committed person shall have the right to
be present and shall be entitled to the benefit of all constitutional
protections that were afforded to him or her at the initial
commitment proceeding. The attorney designated by the county pursuant
to subdivision (i) of Section 6601 shall represent the state and
shall have the right to demand a jury trial and to have the committed
person evaluated by experts chosen by the state. The committed
person also shall have the right to demand a jury trial and to have
experts evaluate him or her on his or her behalf. The court shall
appoint an expert if the person is indigent and requests an
appointment. The burden of proof at the hearing shall be on the state
to prove 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 criminal behavior if discharged. Where the person's failure
to participate in or complete treatment is relied upon as proof that
the person's condition has not changed, and there is evidence to
support that reliance, the jury shall be instructed substantially as
follows:
   "The committed person's failure to participate in or complete the
State Department of State Hospitals Sex Offender Commitment Program
(SOCP) are facts that, if proved, may be considered as evidence that
the committed person's condition has not changed. The weight to be
given that evidence is a matter for the jury to determine."
   (e) If the court or jury rules against the committed person at the
hearing conducted pursuant to subdivision (d), the term of
commitment of the person shall run for an indeterminate period from
the date of this  ruling.   ruling and the
committed person may not file a new petition until one year has
elapsed from the date of the ruling.  If the court or jury rules
for the committed person, he or she shall be unconditionally
released and unconditionally discharged.
   (f)  In the event that   If  the State
Department of State Hospitals has reason to believe that a person
committed to it as a sexually violent predator is no longer a
sexually violent predator, it shall seek judicial review of the
person's commitment pursuant to the procedures set forth in Section
7250 in the superior court from which the commitment was made. If the
superior court determines that the person is no longer a sexually
violent predator, he or she shall be unconditionally released and
unconditionally discharged.
   SEC. 2.    Section 6608 of the   Welfare and
Institutions Code   is amended to read: 
   6608.  (a)  Nothing in this article shall prohibit the
  A    person who has been committed as a
sexually violent predator  from petitioning  
shall be permitted to petition  the court for conditional
release  or an unconditional discharge   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, then 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  and unconditional discharge  under this
subdivision shall be entitled to assistance of counsel. The person
petitioning for conditional release  or unconditional
discharge  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)  The   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, the retained or appointed attorney
for the committed person, and the Director of State Hospitals at
least 30 court days before the hearing date. 
   (c) If the petition for conditional release is made without the
consent of the Director of State Hospitals, no action shall be taken
on the petition by the court without first obtaining the written
recommendation of the Director of State Hospitals.  
   (c) 
    (d)  No hearing upon the petition shall 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.
 No hearing upon the petition shall 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.  
   (d) 
    (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.  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.
 At the end of one year, the court shall hold a hearing to
determine if the person should be unconditionally released from
commitment on the basis that, by reason of a diagnosed mental
disorder, he or she is not 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. The court shall not make this
determination until the person has completed at least one year in the
state-operated forensic conditional release program. The court shall
notify the Director of State Hospitals of the hearing date.
 
   (e) 
    (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. 
   (f)
    (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.

   (g) If the court rules against the committed person at the trial
for unconditional release from commitment, the court may place the
committed person on outpatient status in accordance with the
procedures described in Title 15 (commencing with Section 1600) of
Part 2 of the Penal Code.
   (h) If the court denies the petition to place the person in an
appropriate forensic conditional release program  or if the
petition for unconditional discharge is denied  , the person
may not file a new application until one year has elapsed from the
date of the denial.
   (i) In  any   a  hearing authorized by
this section, the  petitioner   committed person
 shall have the burden of proof by a preponderance of the
evidence. 
   (j) If the petition for conditional release is not made the
director of the treatment facility to which the person is committed,
no action on the petition shall be taken by the court without first
obtaining the written recommendation of the director of the treatment
facility.  
   (k) 
    (j)  Time spent in a conditional release program
pursuant to this section shall not count toward the term of
commitment under this article unless the person is confined in a
locked facility by the 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 paragraph (3) of subdivision (c) of, and subdivisions (d) and (e)
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.
 
  SECTION 1.    Section 4905 of the Welfare and
Institutions Code is amended to read:
   4905.  (a) No employee or agent of a facility, program, or service
shall subject a person with a disability to reprisal or harassment
or directly or indirectly take or threaten to take an action that
would prevent the person, his or her legally authorized
representative, or family member from reporting or otherwise bringing
to the attention of the protection and advocacy agency the facts or
information relative to suspected abuse, neglect, or other violations
of the person's rights.
   (b) An attempt to involuntarily remove from a facility, program,
or service, or to deny privileges or rights without good cause to a
person with a disability by whom or for whom a complaint has been
made to the protection and advocacy agency, within 60 days after the
date the complaint is made or within 60 days after the conclusion of
a proceeding resulting from the complaint, shall raise a presumption
that the action was taken in retaliation for the filing of the
complaint.