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

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

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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

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BILL NUMBER: SB 295	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 7, 2013
	AMENDED IN SENATE  MARCH 21, 2013

INTRODUCED BY   Senator Emmerson

                        FEBRUARY 15, 2013

   An act to amend Sections 6605 and 6608 of  , and to add
Section 6604.9 to,  the Welfare and Institutions Code, relating
to sexually violent predators.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 295, as amended, Emmerson. 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 
is annually reviewed to determine his or her status and by which the
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  and would make nonsubstantive, 
 organizational changes to the provisions  . 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 places the burden of proof in a hearing for
conditional release on the petitioner, by a preponderance of the
evidence.  
   This bill, when the annual report 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, would shift the burden of proof to the state
to show, by a preponderance of the evidence, that conditional release
is not appropriate. 
   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   consent  of the
 Director of State Hospitals   director of the
treatment facility  without first obtaining the written
recommendation of the  Director of State Hospitals 
 director of the treatment facility  .
   Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


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

   SECTION 1.    Section 6604.9 is added to the 
 Welfare and Institutions Code   , to read:  
   6604.9.  (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 report shall be in the form of a
declaration and shall be prepared by a professionally qualified
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) 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 Section 6608, or an unconditional discharge,
pursuant to Section 6605, is in the best interest of the person and
conditions can be imposed that would adequately protect the
community.
   (c) The State Department of State Hospitals shall file this
periodic report with the court that committed the person under this
article. A copy of the report shall be served on the prosecuting
agency involved in the initial commitment and upon the committed
person.
   (d) 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.
   (e) The court, upon receipt of the petition for conditional
release to a less restrictive alternative, shall consider the
petition using procedures described in Section 6608.
   (f) The court, upon receiving a petition for unconditional
discharge, shall order a show cause hearing, pursuant to the
provisions of Section 6605, at which the court may consider the
petition and any accompanying documentation provided by the medical
director, the prosecuting attorney, or the committed person. 
   SECTION 1.   SEC. 2.   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 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.
   (c) (1) The court, upon receipt of the petition for conditional
release to a less restrictive alternative, shall consider that
petition using the procedures described in subdivisions (c) to (j),
inclusive, of Section 6608.


   (2) 
    6605.    (a)     (1)  
 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. 
   (3) 
    (2)  If the court at the show cause hearing determines
that  the committed person has shown  probable cause
 exists  to believe that  his or her  
the committed person's  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) 
    (3)  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) 
    (b)  If the court or jury rules against the committed
person at the hearing conducted pursuant to subdivision  (d),
  (a),  the term of commitment of the person shall
run for an indeterminate period from the date of this 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) 
    (c)  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.   SEC. 3.   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 shall be permitted to 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, 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 under this subdivision shall be entitled to
assistance of counsel. 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, 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 
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 State Hospitals 
 director of the treatment facility  .
   (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.
   (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.
   (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.   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 adequa   tely
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 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.