Bill Text: CA AB1607 | 2013-2014 | Regular Session | Chaptered
Bill Title: Sexually violent predators.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2014-09-30 - Chaptered by Secretary of State - Chapter 877, Statutes of 2014. [AB1607 Detail]
Download: California-2013-AB1607-Chaptered.html
BILL NUMBER: AB 1607 CHAPTERED
BILL TEXT
CHAPTER 877
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2014
APPROVED BY GOVERNOR SEPTEMBER 30, 2014
PASSED THE SENATE AUGUST 26, 2014
PASSED THE ASSEMBLY AUGUST 27, 2014
AMENDED IN SENATE AUGUST 22, 2014
AMENDED IN SENATE AUGUST 19, 2014
AMENDED IN SENATE JULY 2, 2014
AMENDED IN ASSEMBLY MAY 6, 2014
AMENDED IN ASSEMBLY MARCH 24, 2014
INTRODUCED BY Assembly Member Fox
FEBRUARY 5, 2014
An act to amend Sections 6608 and 6608.5 of the Welfare and
Institutions Code, relating to sexually violent predators.
LEGISLATIVE COUNSEL'S DIGEST
AB 1607, Fox. Sexually violent predators.
Existing law provides for the civil commitment of criminal
offenders who have been determined to be sexually violent predators
for treatment in a secure state hospital facility, as specified.
Existing law requires the Secretary of the Department of Corrections
and Rehabilitation to refer a prisoner for evaluation by the State
Department of State Hospitals when the secretary determines that the
person may be a sexually violent predator and specifies the judicial
processes necessary for civil commitment as a sexually violent
predator, including, but not limited to, the right to a jury trial.
Existing law establishes provisions by which a committed person may
petition for conditional release. Existing law requires the court, if
it decides a petition for conditional release is not frivolous, to
give notice, as specified, at least 30 court days prior to the
hearing date for the petition. Existing law requires a person who is
conditionally released pursuant these provisions to be placed in the
county of the domicile of the person prior to the person's
incarceration, unless the court finds that extraordinary
circumstances require placement outside the county of domicile.
This bill would recast these provisions to require the court, if
it determines that the petition is not frivolous, to give notice of
the court's intention to conduct a conditional release hearing. The
bill would require the person petitioning for conditional release,
the Director of State Hospitals, and the designated attorney of the
county of commitment to notify the court within 30 court days of
receipt of this notice if it appears that a county other than the
county of commitment may be the county of domicile. The bill would
provide that the court's determination of the county of domicile
would govern the current petition for conditional release, and would
apply to any subsequent petitions for conditional release. The bill
would require that after determining the county of domicile, the
court set a date for the conditional release hearing and provide
notice, as specified. The bill would authorize the designated
attorney for the county of domicile and the designated attorney for
the county of commitment, as defined, to mutually agree that the
designated attorney for the county of domicile will represent the
state at the conditional release hearing if the county of domicile is
different than the county of commitment. If the designated attorneys
do not make that agreement, the bill would provide that the
designated attorney for the county of commitment will represent the
state at the conditional release hearing, as specified. The bill
would provide that if the committed person has been conditionally
released in a county other than the county of commitment, the
jurisdiction of the person would be transferred to the court of the
county of placement, unless the designated attorney in the county of
placement objects, as provided. The bill would additionally require
that a person who is conditionally released pursuant to these
provisions be placed in the county of the domicile of the person
prior to the person's incarceration, unless the designated county of
placement was given prior notice and an opportunity to comment on the
proposed placement of the committed person in the county, as
specified.
By imposing additional duties on counties in regard to conditional
releases of committed persons, this bill would impose a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6608 of the Welfare and Institutions Code is
amended to read:
6608. (a) A person who has been committed as a sexually violent
predator 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, 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 in all hearings under this section. 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) The procedure for a conditional release hearing in a case
where the county of domicile has not yet been determined shall be as
follows:
(1) If the court deems the petition not frivolous pursuant to
subdivision (a), the court shall give notice 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 of its intention to set a conditional release
hearing. The person petitioning for conditional release, the Director
of State Hospitals, and the designated attorney of the county of
commitment shall notify the court within 30 court days of receipt of
this notice if it appears that a county other than the county of
commitment may be the county of domicile.
(2) If no county other than the county of commitment appears to be
the county of domicile, the court shall determine, consistent with
Section 6608.5, that the county of commitment is the county of
domicile.
(3) If it appears or there are allegations that one or more
counties, other than the county of commitment, may be the county of
domicile, the court shall set a hearing to determine the county of
domicile, consistent with the provisions of Section 6608.5. The court
shall, at least 30 court days prior to the hearing, give notice of
the domicile hearing to the persons listed in paragraph (1) and to
the designated attorney for any county that is alleged to be the
county of domicile. Persons listed in this paragraph and paragraph
(1) may, at least 10 court days prior to the hearing, file and serve
declarations, documentary evidence, and other pleadings, that are
specific only to the issue of domicile. The court may, consistent
with Section 6608.5, decide the issue of domicile solely on the
pleadings, or additionally permit, in the interests of justice,
argument and testimony.
(4) After determining the county of domicile pursuant to paragraph
(2) or (3), the court shall set a date for a conditional release
hearing and shall give notice of the hearing at least 30 court days
before the hearing to the persons described in paragraph (1) and the
designated attorney for the county of domicile.
(5) (A) If the county of domicile is different than the county of
commitment, the designated attorney for the county of domicile and
the designated attorney for the county of commitment may mutually
agree that the designated attorney for the county of domicile will
represent the state at the conditional release hearing. If the
designated attorneys do not make this agreement, the designated
attorney for the county of commitment will represent the state at the
conditional release hearing.
(B) At least 20 court days before the conditional release hearing,
the designated attorney for the county of commitment shall give
notice to the parties listed in paragraph (1) and to the court
whether the state will be represented by the designated attorney of
the county of domicile or the designated attorney of the county of
commitment.
(C) The designated attorney for the county of domicile and the
designated attorney for the county of commitment should cooperate
with each other to ensure that all relevant evidence is submitted on
behalf of the state. No attorney other than the designated attorney
for the county representing the state shall appear on behalf of the
state at the conditional release hearing.
(6) The court's determination of a county of domicile shall govern
the current and any subsequent petition for conditional release
under this section.
(7) For the purpose of this subdivision, the term "county of
domicile" shall have the same meaning as defined in Section 6608.5.
(8) For purposes of this section, the term "designated attorney of
the county of commitment" means the attorney designated in
subdivision (i) of Section 6601 in the county of commitment.
(9) For purposes of this section, the term "designated attorney
for the county of domicile" means the attorney designated in
subdivision (i) of Section 6601 in the county of domicile.
(c) The proceedings for a conditional release hearing in a case
where the court has previously determined the county of domicile
shall be as follows:
(1) If the court determines, pursuant to subdivision (a), that the
petition is not frivolous, the court shall give notice of the
hearing date at least 30 days prior to the hearing to the designated
attorneys for the county of domicile and the county of commitment,
the retained or appointed attorney for the petitioner, and the
Director of State Hospitals.
(2) Representation of the state at the conditional release hearing
shall be pursuant to paragraph (5) of subdivision (b).
(d) (1) 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,
pursuant to subdivision (g) of Section 6608.5, the notice specified
in paragraph (1) of subdivision (c) shall be given to the designated
attorney of the county of placement, who shall represent the state in
any further proceedings.
(2) The term "county of placement" means the county where the
court has placed a person who is granted conditional release.
(e) If the petition for conditional release is made without the
consent of the director of the treatment facility, no action shall be
taken on the petition by the court without first obtaining the
written recommendation of the director of the treatment facility.
(f) A hearing upon the petition shall not 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. A
hearing upon the petition shall not 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.
(g) 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 paragraph (5) of subdivision (b) shall
represent the state and may have the committed person evaluated by
experts chosen by the state. The committed person shall have the
right to the appointment of experts, if he or she so requests. If the
court at the hearing determines that the committed person would not
be a danger to others due to his or her diagnosed mental disorder
while under supervision and treatment in the community, the court
shall order the committed person placed with an appropriate forensic
conditional release program operated by the state for one year. A
substantial portion of the state-operated forensic conditional
release program shall include outpatient supervision and treatment.
The court shall retain jurisdiction of the person throughout the
course of the program, except as provided in subdivision (g) of
Section 6608.5.
(h) 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.
(i) 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.
(j) 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.
(k) In a hearing authorized by this section, the committed person
shall have the burden of proof by a preponderance of the evidence,
unless the report required by Section 6604.9 determines that
conditional release to a less restrictive alternative is in the best
interest of the person and that conditions can be imposed that would
adequately protect the community, in which case the burden of proof
shall be on the state to show, by a preponderance of the evidence,
that conditional release is not appropriate.
( l ) 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.
(m) After a minimum of one year on conditional release, the
committed person, with or without the recommendation or concurrence
of the Director of State Hospitals, may petition the court for
unconditional discharge. The court shall use the procedures described
in subdivisions (a) and (b) of Section 6605 to determine if the
person should be unconditionally discharged from commitment on the
basis that, by reason of a diagnosed mental disorder, he or she is no
longer a danger to the health and safety of others in that it is not
likely that he or she will engage in sexually violent criminal
behavior.
SEC. 2. Section 6608.5 of the Welfare and Institutions Code is
amended to read:
6608.5. (a) A person who is conditionally released pursuant to
this article shall be placed in the county of the domicile of the
person prior to the person's incarceration, unless both of the
following conditions are satisfied:
(1) The court finds that extraordinary circumstances require
placement outside the county of domicile.
(2) The designated county of placement was given prior notice and
an opportunity to comment on the proposed placement of the committed
person in the county, according to procedures set forth in Section
6609.1.
(b) (1) For the purposes of this section, "county of domicile"
means the county where the person has his or her true, fixed, and
permanent home and principal residence and to which he or she has
manifested the intention of returning whenever he or she is absent.
For the purposes of determining the county of domicile, the court may
consider information found on a California driver's license,
California identification card, recent rent or utility receipt,
printed personalized checks or other recent banking documents showing
that person's name and address, or information contained in an
arrest record, probation officer's report, trial transcript, or other
court document. If no information can be identified or verified, the
county of domicile of the individual shall be considered to be the
county in which the person was arrested for the crime for which he or
she was last incarcerated in the state prison or from which he or
she was last returned from parole.
(2) In a case where the person committed a crime while being held
for treatment in a state hospital, or while being confined in a state
prison or local jail facility, the county wherein that facility was
located shall not be considered the county of domicile unless the
person resided in that county prior to being housed in the hospital,
prison, or jail.
(c) For the purposes of this section, "extraordinary circumstances"
means circumstances that would inordinately limit the department's
ability to effect conditional release of the person in the county of
domicile in accordance with Section 6608 or any other provision of
this article, and the procedures described in Sections 1605 to 1610,
inclusive, of the Penal Code.
(d) The county of domicile shall designate a county agency or
program that will provide assistance and consultation in the process
of locating and securing housing within the county for persons
committed as sexually violent predators who are about to be
conditionally released under Section 6608. Upon notification by the
department of a person's potential or expected conditional release
under Section 6608, the county of domicile shall notify the
department of the name of the designated agency or program, at least
60 days before the date of the potential or expected release.
(e) In recommending a specific placement for community outpatient
treatment, the department or its designee shall consider all of the
following:
(1) The concerns and proximity of the victim or the victim's next
of kin.
(2) The age and profile of the victim or victims in the sexually
violent offenses committed by the person subject to placement. For
purposes of this subdivision, the "profile" of a victim includes, but
is not limited to, gender, physical appearance, economic background,
profession, and other social or personal characteristics.
(f) Notwithstanding any other provision of law, a person released
under this section shall not be placed within one-quarter mile of any
public or private school providing instruction in kindergarten or
any of grades 1 to 12, inclusive, if either of the following
conditions exist:
(1) The person has previously been convicted of a violation of
Section 288.5 of, or subdivision (a) or (b), or paragraph (1) of
subdivision (c) of Section 288 of, the Penal Code.
(2) The court finds that the person has a history of improper
sexual conduct with children.
(g) (1) Except as provided in paragraph (2), if the committed
person is ordered to be conditionally released in a county other than
the county of commitment, the court shall order that jurisdiction of
the person and all records related to the case be transferred to the
court of the county of placement. Upon transfer of jurisdiction to
the county of placement, the designated attorney of the county of
placement shall represent the state in all further proceedings.
(2) The designated attorney of the county of commitment shall
serve written notice upon the designated attorney for the county of
placement within 15 court days of an order to place a committed
person in the county of placement. The designated attorney of the
county of placement may file an affidavit with the court in the
county of commitment objecting to the transfer of jurisdiction within
15 court days after receiving the notice. If the affidavit objecting
to the transfer of jurisdiction is timely filed, the court shall not
transfer jurisdiction. If an affidavit objecting to the transfer of
jurisdiction is not timely filed, paragraph (1) shall apply.
(3) For the purpose of this section, "county of placement" means
the county where the court orders the committed person to be placed
for conditional release.
(4) For the purpose of this section, "designated attorney of the
county of placement" means the attorney designated in subdivision (l)
of Section 6601 in the county of placement.
(5) This section shall not be construed to negate or in any way
affect the decision of the court of the county of commitment to
conditionally release the committed person in the county of
placement.
SEC. 3. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.
