BILL ANALYSIS
AB 1176
Page 1
Date of Hearing: April 10, 2007
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 1176 (Spitzer) - As Amended: April 10, 2007
SUMMARY : Requires courts hearing petitions for conditional
release of sexual violent predators (SVPs) to transfer and hear
all petitions for release in the county of domicile rather than
the county of commitment. Specifically, this bill :
1)Specifies if a petition for conditional release or discharge
is wiled with the superior court of the county of SVP
commitment and the county of domicile has not been determined,
the superior court of the county of commitment shall make an
initial ruling regarding the county of domicile before
proceeding with any conditional release hearing.
2)Provides should the court find the county of commitment is the
same as the county of domicile, the court shall proceed with
the conditional release hearing.
3)Requires when the court finds that the county of domicile is
not the county of commitment where the petition has been
filed, the court shall suspend proceedings on the petition for
conditional release and transfer the petition to the county of
domicile.
4)Provides for service of the petition upon the prosecuting
agency designated in the domicile county within five days of
any transfer.
5)Permits the county of domicile to "elect" to hear the
transferred petition. If the county of domicile elects not to
hear the petition, the court shall return the petition to the
superior court of the county of commitment with the
explanation that it has decided not to hear the petition and
shall provide notice of the decision to the parties to the
action within five days.
6)Requires the county of commitment to resume proceedings on the
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petition for conditional release when the county of domicile
rejects the petition transfer.
EXISTING LAW :
1)Defines a "SVP" as a person who has been convicted of a
sexually violent offense against one or more victims 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.
[Welfare and Institutions Code (WIC) Section 6600(a)(1).]
2)Provides SVPs who are conditionally released shall 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. [WIC Section 6608.5(a).]
3)Defines "county of domicile" as 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. [WIC Section 6608.5(b).]
4)Provides in cases 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. [WIC
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Section 6608.5(b).]
5)Defines "extraordinary circumstances" as circumstances that
would inordinately limit the department's ability to effect
conditional release of the person in the county of domicile.
[WIC Section 6608.5(c).]
6)Requires the county of domicile 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. Upon notification by the
department of a person's potential or expected conditional
release, 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. [WIC
Section 6608.5(d).]
7)Specifies in recommending a specific placement for community
outpatient treatment, the department or its designee shall
consider all of the following [WIC Section 6608.5(e)]:
a) The concerns and proximity of the victim or the victim's
next of kin.
b) The age and profile of the victim or victims in the
sexually violent offenses committed by the person subject
to placement. The "profile" of a victim includes, but is
not limited to, gender, physical appearance, economic
background, profession, and other social or personal
characteristics.
c) A person released under this section shall not be placed
within one-quarter mile of any public or private school,
providing specified circumstances exist.
8)Provides that a person who has been committed as SVP may
petition a court for conditional release or an unconditional
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discharge without the recommendation or concurrence of DMH.
[WIC Section 6600(a).]
9)Provides, when or if the court holds a hearing to determine
whether the person committed should be conditionally released
the court must consider whether the person's diagnosed mental
disorder places the health and safety of others at risk if he
or she is under the supervision and treatment in the
community. [WIC Section 6608(d).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "On August 15,
2006, Governor Schwarzenegger created the High Risk Sex
Offender and Sexually Violent Predator Task Force by Executive
Order S-15-06. I, along with former Assemblyman Rudy
Bermudez, served as co-chairs of the Task Force. The Task
Force submitted its findings and recommendations to the
Governor on December 1, 2006. While the Department of
Corrections and Rehabilitation and the Department of Mental
Health have been working to implement some of the
recommendations administratively, some of them require
legislation. AB 1176 will codify one of the recommendations
made by the Task Force.
"Under current law, when the superior court approves a petition
for the conditional release of a SVP, that person is required
to be placed in his or her county of domicile (the county in
which his or her permanent home was before incarceration).
However, conditional release petitions are filed with the
superior court of the county of commitment (the county that
tried, convicted and had the person committed to the
Department of Mental Health as an SVP). In most cases, the
county of domicile and the county of commitment are the same.
There are some cases where they are not.
"In cases where the counties of domicile and commitment are
different, the superior court approving the petition for
conditional release has no choice but to order the SVP
released into a county that has had no say during the hearing
process. For example, a SVP filed for conditional release
with the Superior Court of Fresno County, his county of
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commitment. During the hearing, the Fresno County Superior
Court determined that his county of domicile was Imperial
County. Current notification and placement requirements allow
Imperial County to recommend a placement location once the SVP
is released, but the county was not allowed a role during the
conditional release hearing. AB 1176 will give the Superior
Court of the County of domicile the jurisdiction over
petitions for conditional release and subsequent unconditional
release.
"If local officials and communities are to actively participate
in the community placement of Sexually Violent Predators as
they are released, then the Superior Court for the county of
domicile should have jurisdiction over any petition filed for
conditional release. AB 1176 will allow communities who are
most affected by the release of an SVP to have a say in the
placement of these individuals."
2)Background : According to the fact sheet provided by the
author, "Under current law, when the superior court approves a
petition for the conditional release of a SVP, that person is
required to be placed in their county of domicile, (the county
in which his or her permanent home was before incarceration).
However, conditional release petitions are filed with the
superior court of the county of commitment (the county that
tried, convicted and had the person committed to the
Department of Mental Health as an SVP). In most cases, the
county of domicile and the county of commitment are the same.
There are some cases where they are not.
"When the counties of commitment and domicile are not the same,
a superior court approving a petition for conditional release
has no choice but to order the SVP conditionally released into
another county. For example, an SVP filed for conditional
release with the Superior Court of Fresno County, his county
of commitment. During the hearing, the Fresno County Superior
Court determined that his county of domicile was Imperial
County. Current notification and placement requirements allow
Imperial County to recommend a placement location once the SVP
is released, but Imperial County was not allowed a role during
the conditional release hearing.
"AB 1176 is one of the recommendations made by the High Risk Sex
Offender and Sexually Violent Predator Task Force report,
which was submitted to the Governor on December 1, 2006. This
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bill requires the superior court for the county of domicile of
a SVP to have jurisdiction over any petition filed for
conditional release and subsequent unconditional release.
This bill would allow the district attorney representing the
community in which the SVP is seeking release to argue the
merits of the committed person's suitability for conditional
release; terms and conditions of release while in the
community; and, if necessary, participate in any revocation
hearings attempting to return the individual to a state mental
hospital.
"The High Risk Sex Offender Task Force was created by the
Governor with Executive Order S-08-06 on May 15, 2006. The
purpose of the Task Force (which I co-chaired, along with
former Assembly Member Bermudez) was to review statutory
requirements and departmental policies on notification,
placement, monitoring and enforcement of parole policies and
to make recommendations to improve each. The Task Force
submitted ten recommendations on August 15, 2006.
"Shortly thereafter, the Governor issued a second Executive
Order (S-15-06) to expand upon the work already done with the
High Risk Sex Offender Task Force by adding new review
criteria for evaluation. The Task Force then reviewed the
practices of SVPs. The second report, containing 26
recommendations, was submitted to the Governor on December 1,
2006. While the Department of Corrections and Rehabilitation
and the Department of Health and Human Services has been
working to implement the recommendations of the Task Force
administratively, many of the recommendations require
legislation.
"If local officials and communities are to actively participate
in the community placement of SVPs as they are released, then
the superior court for the county of domicile should have
jurisdiction over any petition filed for conditional release.
AB 1176 will allow communities who are most affected by the
release of an SVP to have a say in the placement of these
individuals."
3)Background of SVP Law : California's SVP Act became effective
January 1, 1996. The Act created a new civil commitment for
SVPs. The Legislature disavowed any "punitive purpose" and
declared its intent to establish "civil commitment"
proceedings in order to provide "treatment" to mentally
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disordered individuals who cannot control sexually violent
criminal behavior. [See, e.g., AB 888 (Rogan), Chapter 763,
Statutes of 1995, Section 1; Senate Committee on Criminal
Procedure, Analysis of AB 888 (July 11, 1995).] The
Legislature also made clear that despite their criminal
records persons eligible for commitment and treatment as SVPs
are to be viewed "not as criminals, but as sick persons."
(WIC Section 6250.) Consistent with these remarks, the SVP
Act was placed in the WIC, surrounded on each side by other
schemes concerned with the care and treatment of various
mentally ill and disabled groups. [See, e.g., WIC Section
5000 (Lanterman-Petris-Short Act) and WIC Section 6500
(Mentally Retarded Persons Law).]
The SVP law tries to ensure that sexual predators suffering from
mental disorders and deemed likely to re-offend are treated in
a secure facility through a civil commitment process. The
CDCR and the BPH screen cases to determine if they meet the
criteria specified in the statute. If so, the prisoner is
referred to the DMH for clinical evaluation by two clinical
evaluators. If both clinical evaluators find that the
prisoner meets the criteria, the case is referred to the
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
prisoner is scheduled for a trial. If the jury finds beyond a
reasonable doubt that the offender meets the statutory
criteria, the prisoner may then be civilly committed to a DMH
facility for treatment for two years. The offender is
examined at least once each year of the commitment and may
petition the court for conditional release. At the end of the
two-year commitment, the prisoner is evaluated by the court to
determine whether a new petition of commitment should be
filed. The offender may be re-committed for subsequent
two-year terms.
As of December 1, 2004, there were 490 persons found to be SVPs
and committed for confinement and treatment in a secure
facility designated by the Director of DMH. There were 194
individuals awaiting trial.
4)Judicial Economy Concerns : Generally, the judicial system
makes great effort to stop repeating work done by others.
Repeating work can be costly in time and financial resources.
Throughout the history of modern law, courts have clung to the
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concept of "judicial economy" to prevent the slowing of an
already lethargic system.
By taking the hearing for conditional release from the county of
commitment, this bill requires a new judge, a new district or
city attorney's office, and generally a new court appointed
attorney for the individual seeking conditional release. The
cost, transportation, housing and the work and time required
for all of the new parties to familiarize themselves with the
files, facts, and circumstances surrounding the predicate
offenses, treatment, and mental condition of the individual
can be seen as straining judicial economy.
5)Argument in Support : The League of California Cities states,
"AB 1176 is a good public safety measure which will allow
communities who are most affected by the release of an SVP to
have a say in the placement of these individuals."
6)Argument in Opposition: None submitted.
7)Related Legislation:
a) AB 148 (Alarc?n) allows a landlord to refuse to provide
housing to, or to evict, convicted sex offenders whose
names appear on the Department of Justice's Web site. AB
148 also requires CDCR to place sex offenders released on
parole evenly by Assembly districts throughout California.
AB 148 was heard on March 13, 2007 and held in this
Committee without recommendation.
b) AB 370 (Adams) allows a city or county to adopt an
ordinance prohibiting sex offenders released on parole from
residing with any other person on parole in a single-family
dwelling and includes residential facilities that serve six
or fewer persons in the definition of a "single-family
dwelling". AB 370 is pending hearing by the Assembly Human
Services Committee.
c) AB 487 (Garcia) increases the term of parole for a
person convicted of a sexual offense against a minor under
the age of 14 to 10 years and increases the term to life if
the person has a prior conviction for which he or she is
required to register as a convicted sex offender. AB 487
is scheduled to be heard by this Committee today.
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d) AB 601 (Arambula) requires DOJ to create the "Sexually
Violent Predator and Rural Communities Task Force". AB 601
is pending hearing by this Committee.
e) AB 1197 (Aghazarian) states legislative intent to enact
legislation to protect landlords and tenants from sex
offenders. AB 1197 is pending referral by the Assembly
Rules Committee.
f) AB 1235 (Fuller) requires the Megan's Law Web site to
include whether or not an offender is on parole or being
monitored by a Global Positioning System (GPS) device. AB
1235 is pending hearing by this Committee.
g) AB 1348 (Spitzer) prohibits a SVP from being placed on
conditional release unless the person has completed all
phases of the treatment program, as specified. AB 1348 is
pending hearing by this Committee.
h) AB 1509 (Spitzer) authorizes CDCR, in a case where a
parolee may not return to the county of last legal
residence due to the proximity of the victim, to place that
parolee in a different county where proper notice is
provided. AB 1509 is spending referral by the Assembly
Rules Committee.
i) SB 150 (Florez) requires school districts to review bus
routes to determine if sex offenders reside along the
route. SB 150 is pending hearing by the Senate Public
Safety Committee.
j) SB 501 (Hollingsworth) makes execution of documents
related to sex registration punishable under penalty of
perjury. SB 501 is pending hearing by the Senate Public
Safety Committee.
aa) SB 502 (Hollingsworth) requires any person determined to
have been a SVP after January 6, 1996 to wear a GPS
tracking device for life. SB 502 is pending hearing by the
Senate Public Safety Committee.
bb) SB 503 (Hollingsworth) provides that failure to
participate in treatment is a factor in the conditional
release of a SVP. SB 503 is pending hearing by the Senate
Public Safety Committee.
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cc) SB 505 (Hollingsworth) states legislative intent to have
all high-risk sex offenders wear GPS tracking devices. SB
505 is pending assignment by the Senate Rules Committee.
dd) SB 506 (Hollingsworth) states legislative intent to
prevent a SVP from registering as a transient and requires
re-entry facilities for SVPs. SB 506 is pending referral
by the Senate Rules Committee.
ee) SB 626 (Harman) requires every sex offender provide to
proof of residence to law enforcement. SB 626 is pending
referral by the Senate Rules Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Peace Officers' Association
California Police Chiefs Association
California State Sheriffs' Association
Crime Victims United
League of California Cities
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744