BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair A
2007-2008 Regular Session B
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AB 1176 (Spitzer) 6
As Amended April 10, 2007
Hearing date: July 3, 2007
Welfare & Institutions Code
JM:br
SEXUALLY VIOLENT PREDATORS CONDITIONAL RELEASE HEARINGS :
DETERMINING PLACE OF HEARING AND COUNTY OF DOMICILE
HISTORY
Source: Author
Prior Legislation: AB 893 (Horton) - Ch. 162, Stats. 2005
AB 2450 (Canciamilla) - Ch. 425, Stats. 2004
AB 493 (Salinas) - Ch. 222, Stats. 2004
SB 659 (Correa) - Ch. 248, Stats. 2001
AB 1142 (Runner) - Ch. 323, Stats. 2001
SB 2018 (Schiff) - Ch. 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
Support: California State Association of Counties (CSAC); League
of California Cities; Peace Officers Research
Association of California; Sacramento County Board of
Supervisors; Crime Victims United; California Peace
Officers' Association; California Police Chiefs
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Association
Opposition:None known
Assembly Floor Vote: Ayes 73 - Noes 0
KEY ISSUES
WHERE A SEXUALLY VIOLENT PREDATOR ("SVP") PATIENT FILES A PETITION
FOR CONDITIONAL RELEASE IN THE COUNTY OF COMMITMENT, SHOULD THE
COURT IN THAT COUNTY DETERMINE IF THE SVP PATIENT'S COUNTY OF
DOMICILE (AND STATUTORILY PRESUMED COUNTY OF PLACEMENT) IS THE SAME
AS THE COUNTY OF COMMITMENT BEFORE PROCEEDING FURTHER IN THE MATTER?
IF THE COURT DETERMINES THAT THE COUNTY OF DOMICILE IS OTHER THAN
THE COUNTY OF COMMITMENT (WHERE THE PETITION WAS FILED), SHOULD THE
COURT TRANSFER CONSIDERATION ON THE PETITION TO THE COUNTY OF
DOMICILE?
UPON TRANSFER OF THE MATTER TO THE COUNTY OF DOMICILE, SHOULD THE
COURT IN THAT COUNTY HAVE THE AUTHORITY OR DISCRETION TO EITHER
ACCEPT THE PETITION FOR CONSIDERATION OR RETURN THE MATTER TO THE
COUNTY OF COMMITMENT WHERE THE PETITION WAS FILED?
PURPOSE
The purposes of this bill are to 1) provide that where an SVP
patient files a petition for conditional release in the county
of commitment, the court, before considering the merits of the
petition, shall determine whether or not the county of
commitment (where the petition was filed) is the county of
domicile of the SVP patient; 2) provide that if the county where
the petition was filed is not the county of domicile, the court
in the county where the petition was filed shall transfer
consideration of the petition to the court in the county of
domicile; and 3) provide that the court in the county of
domicile has authority to either accept the petition for
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consideration on the merits or return the matter to the county
of commitment where the petition was filed.
Conditional Release Petitions and Hearings Concerning Sexually
Violent Predator Patients
Existing law permits persons committed as a sexually violent
predator ("SVP") to petition the court for conditional release
without the concurrence of the DMH Director. (Welf. & Inst.
Code 6608). In particular, Section 6608:
Provides that an SVP patient shall be
conditionally released if he will not likely engage
in sexually violent criminal behavior if placed
under supervision and treatment in the community.
(Welf. & Inst. Code 6608, subd. (a).
Requires the court to set the matter for hearing
if the petition is not frivolous. (Welf. & Inst.
Code 6608, subd. (a).)
Directs the court to give notice of the hearing
date to the designated county counsel, the retained
or appointed attorney for the committed person, and
the DMH Director at least 15 court days before the
hearing date. (Welf. & Inst. Code 6608, subd.
(b).)
Provides that the SVP patient has the burden of
proof at the hearing. If the court determines that
the patient would not be a danger to others while
under supervision and treatment in the community,
the court shall order the committed person placed
with a conditional release program, as specified,
operated by the state for one year. 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 he is not a danger to
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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 notify
the DMH Director of the hearing date. (Welf. &
Inst. Code 6608, subd. (d).)
Requires that if the court determines that the
person should be conditionally released, the
community program director, or his or her designee,
shall make the necessary placement arrangements and,
within 21 days after receiving notice of the court's
finding, the person shall be placed in the
community, unless good cause for not doing so is
presented to the court. (Welf. & Inst. Code 6608,
subd. (f).)
Provides that 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 specified procedures. (Welf. & Inst. Code
6608, subd. (g).)
Existing law , despite a reference to "unconditional discharge"
in subdivision (a) of Welfare and Institutions Code Section
6608, includes no process where a court or a jury could find
that an SVP patient should be unconditionally released. Section
6608 includes no standards for the court to determine if
unconditional release should be granted. Section 6608 includes
no cross-reference to Section 6605, the section governing trials
for unconditional release. (Welf. & Inst. Code 6608, subd.
(a).) Subdivision (a) further provides that "the person
petitioning for conditional release and unconditional discharge
under this subdivision shall be entitled to assistance of
counsel."
Existing law provides that a patient conditionally released from
the SVP program shall be released in to the county of the
patient's domicile, unless "extraordinary circumstances require
placement outside the county of civil commitment." (Welf. &
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Inst. Code 6608.5, subd. (a).)
Existing law defines "extraordinary circumstances" thus:
Extraordinary circumstances are those that would inordinately
limit [DMH's] ability to effect conditional release . . . in the
county of domicile in accordance with (Welf. & Inst. Code
6608) or any other provision of this article, and the procedures
described in Sections 1605 to 1610, inclusive, of the Penal
Code. (Welf. & Inst. Code 6608.5, subd. (c).)
Existing law requires the county of SVP commitment to designate
a county agency to consult with and assist DMH in obtaining
housing for a conditionally released SVP patient. (Welf. &
Inst. Code 6608.5, subd. (d).)
Existing law (Welf. & Inst. Code 6608.5, subd. (e)) requires
DMH to consider the following factors in making a specific
recommendation for placement:
The concerns and proximity of the victim or victim's
next of kin.
The age and characteristics of the victims of the SVP
patient's prior crimes.
This bill specifies if an SVP patient files a petition for
conditional release or unconditional discharge in the superior
court of the county of commitment, and the county of domicile
has not been determined, the court in the county of commitment
shall make a ruling as to the SVP patient's county of domicile
before proceeding with any conditional release hearing.
This bill provides that where the court finds that the county of
commitment is the same as the county of domicile, the court
shall proceed with the conditional release hearing.
This bill provides that if the court finds that the county of
domicile is not the county in which the petition has been filed,
the court shall suspend proceedings on the petition for
conditional release and transfer the petition to the county of
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domicile.
This bill provides for service of the petition upon the
prosecutor in the county of domicile within five days of
transfer.
This bill 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.
This bill requires the county of commitment to resume
proceedings on petition for conditional release when the county
of domicile rejects the petition transfer.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California currently faces an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity is
nearly exhausted as prisons today are being operated with a
significant level of overcrowding.<1> In addition, California's
jails likewise are significantly overcrowded. Twenty California
counties are operating under jail population caps. According to
the State Sheriffs' Association, "counties are currently
releasing 18,000 pre and post-sentenced inmates every month and
many counties are so overcrowded they do not accept misdemeanor
bookings in any form, . . . ."<2> In January of this year the
Legislative Analyst's office summarized the trajectory of
California's inmate population over the last two decades:
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<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007).
<2> Memorandum from CSSA President Gary Penrod to Governor,
February 14, 2007.
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During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<3>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
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<3> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<4>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
In February of 2006, the federal court appointed a receiver to
take over the direct management and operation of the prison
medical health care delivery system from the state. Motions
filed in December of 2006 are now pending before three federal
court judges in which plaintiffs are seeking a court-ordered
limit on the prison population pursuant to the federal Prison
Litigation Reform Act. Medical, mental health and dental care
programs at CDCR each are "currently under varying levels of
federal court supervision based on court rulings that the state
has failed to provide inmates with adequate care as required
under the Eighth Amendment to the U.S. Constitution. The courts
found key deficiencies in the state's correctional programs,
including: (1) an inadequate number of staff to deliver health
care services, (2) an inadequate amount of clinical space within
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<4> Analysis 2007-08 Budget Bill, supra, fn. 1.
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prisons, (3) failures to follow nationally recognized health
care guidelines for treating inmate-patients, and (4) poor
coordination between health care staff and custody staff."<5>
This bill would not appear to aggravate the prison and jail
overcrowding crisis outlined above, although it cannot be
determined how the new process for determining the domicile of
an SVP patient at the beginning of the conditional release
hearing process would affect the holding of SVP patients in
county facilities.
COMMENTS
1. Need for This Bill
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,
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<5> Primer, supra, fn. 4.
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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 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. AB 493 (Salinas), Chapter 222, Statutes of 2004 Established
the Current System for Determining the Proper County for a
Conditional Release Hearing; Additional Legislation Addressing
Victim Concerns
In 2004, the Legislature enacted AB 493 (Salinas), Chapter 222,
Statutes of 2004, concerning the placement of conditionally
released SVP patients. It appears that the law did not
previously specify the county in which a conditionally released
person would be placed. Petitions for release are filed in the
county of commitment. Prior to the order for release of Brian
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DeVries in 2003, no court had ordered conditional release of an
SVP patient.
The 2004 legislation specified that a conditionally released SVP
patient should be placed in the county of his domicile unless
the court found extraordinary circumstances requiring placement
in another county. Extraordinary circumstances were essentially
defined as those that would prevent the purposes of the
conditional release provisions - treatment and supervision in
the community - from being realized. AB 493 was heavily
supported by Soledad, a small city that believed Brian DeVries
had been "dumped" on that community instead of being released in
DeVries' home county, Santa Clara.
3. This Bill Does Not Include Standards for the Court in the
County of Domicile to Determine Whether or Not to Accept a
Petition; Issues of Familiarity with the Issues and SVP
Patient
General Issues, Process, and Lack of Guidelines for Exercising
Discretion for County of Domicile to Hear Petition for
Conditional Release
This bill requires the court in the county of commitment to
transfer consideration of a petition for conditional release to
the court in the county of domicile if the court determines that
the SVP patient's county of domicile is different than the
county of commitment. The county of domicile, as determined by
the county of commitment, can accept or reject the petition for
consideration on the merits.
This bill does not include any guidance for the court in
determining whether or not a conditional release petition should
be heard in the county of domicile. It appears that the decision
to accept or reject hearing of the petition would be a
discretionary act. It is settled law in California that judicial
discretion must be guided by legislative direction. Without
direction and guidance, discretionary decisions are subject to
attack as arbitrary. (Bailey v. Taffe (1896) 29 Cal. 422, 424.)
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In contrast, the decision regarding the place of domicile is
guided by relatively detailed standards set out in the law for
determining the county of domicile. (Welf. & Inst. Code
6608.5, subd. (b).) Although the bill appears to be silent on
this issue, an SVP patient would likely seek to challenge the
decision if the patient believed that a determination was
unfavorable or unfair. Prosecutors might also seek to challenge
a decision concerning domicile.
However, it appears that under existing law a court would
determine county of domicile after hearing the matter and
determining whether or not the person should be released.
(Welf. & Inst. Code 6608 and 6608.5.) This bill requires
that the court determine county of domicile before hearing any
substantive matters. It cannot be determined how this change of
process would affect decisions in these cases.
One could perhaps argue that the prosecutor in the county of
domicile, and any other entity in that county that believed it
could affect the outcome of a conditional release hearing, would
very aggressively challenge release if the SVP patient would be
released in that county. The public and local government
officials in communities where conditionally released SVP
patients may be released are typically vehemently opposed to
placement, despite requirements that the county of placement
select an agency to assist DMH in finding the SVP patient a
residence. Clearly, most counties would not voluntarily agree
to be the site of an SVP placement.
Factors Relevant to the Proper Place for Hearing a Conditional
Release Petition
It can be argued that the proper court for consideration of a
hearing for petition for conditional release usually should be
the court in the county from which the SVP patient was committed
to the SVP program. The prosecutor in that county likely
previously convicted the patient, and the court sentenced the
person to prison for the underlying sexual offense. The court
in that county heard and decided the initial petition for
commitment. If the patient was committed prior to the enactment
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of Proposition 83 in 2006, the court in that county would have
heard recommitment trials. The court that presided over the
initial commitment would have received annual reviews of the
SVP's mental condition. Further, the SVP patient may well have
had the same attorney throughout the entire process.
In contrast, the prosecutor and court in the county of domicile
would likely have had no prior contact with the SVP patient. It
would likely be difficult for the patient's prior counsel to
continue to represent the SVP patient if the case was heard in a
different county. The prosecutor, court and counsel for the
patient would likely need to spend substantial time becoming
familiar with the matter. Retained counsel for the patient
might then have an advantage in such a case.
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WOULD THE COURT AND PROSECUTOR IN THE COUNTY OF COMMITMENT
TYPICALLY HAVE SUBSTANTIAL AND LONG-STANDING FAMILIARITY WITH
THE CASE AND THE SVP PATIENT?
SHOULD THE LAW INCLUDE A PRESUMPTION THAT THE HEARING FOR
CONDITIONAL RELEASE SHOULD BE HEARD IN THE COUNTY OF COMMITMENT?
WHAT KIND OF PROCESS WOULD A COURT IN THE COUNTY OF DOMICILE OF
AN SVP USE TO DETERMINE WHETHER A PETITION FOR CONDITIONAL
RELEASE WILL BE ACCEPTED FOR CONSIDERATION ON THE MERITS?
WHAT STANDARDS WOULD GUIDE THE COURT IN THE COUNTY OF DOMICILE
IN DETERMINING WHETHER OR NOT THE COURT SHOULD ACCEPT OR REJECT
CONSIDERATION ON THE MERITS OF A PETITION FOR CONDITIONAL
RELEASE OF AN SVP PATIENT?
WHAT WOULD HAPPEN IN A CASE WHERE THE COURT IN THE COUNTY TO
WHICH THE CASE HAS BEEN TRANSFERRED BY THE COUNTY OF COMMITMENT
FINDS THAT IT IS NOT THE COUNTY OF DOMICILE?
4. Role of Prosecutor and SVP (and Counsel) in Domicile Transfer
Decisions
This bill specifies that where the court in the county of
commitment transfers the matter to the court in the county of
domicile, the court shall serve a copy of the petition on the
prosecutor in the county of domicile. The bill does not
indicate what role the prosecutor could play in the
determination of whether the case should be heard in the county
of domicile. The bill does not state what notice would be given
to the SVP patient or what role the patient could play.
As noted above, it appears that under existing law the
determination of domicile is done at the end of the hearing
process. This bill requires that domicile is the first issue to
be determined by the court. Where a court determines the issue
of domicile at the end of the hearing, the court has substantial
information about the SVP patient, including domicile, as the
parties and the court are on notice to address that issue.
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Where the court determines domicile as the first step in the
entire process, the court may need to convene a hearing to take
and consider evidence on the issue. This could complicate these
cases. The lack of statutory procedures could result in some
confusion and lack of consistency from court to court and county
to county.
WOULD THE PROSECUTOR AND THE SVP PATIENT BE INVOLVED IN THE
DETERMINATION OF WHETHER OR NOT THE COURT IN THE COUNTY OF
DOMICILE SHALL ACCEPT A CONDITIONAL RELEASE PETITION FOR
HEARING?
5. What Legal Standing or Role Does the "Community" have in the
SVP Conditional Process
The author's statement argues that the community of placement -
generally the community of domicile - should have "a role during
the conditional release hearing." The author does not explain
what such a "role" would be. It is clear that many cities would
desire to oppose and frustrate the granting of conditional
release and the placement of the SVP in the community. A local
government entity, or the general public, would not appear to
have standing or expertise to argue that an SVP patient does not
meet the standards for release.
WHAT ROLE SHOULD LOCAL GOVERNMENT, LAW ENFORCEMENT AND THE
PUBLIC PLAY IN ISSUES CONCERNING WHETHER AN SVP PATIENT SHOULD
BE RELEASED AND WHERE HE IS TO RESIDE?
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