BILL NUMBER: AB 1176 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 10, 2007
INTRODUCED BY Assembly Member Spitzer
FEBRUARY 23, 2007
An act to amend Section 6608 of the Welfare and Institutions
Code, relating to sexually violent predators.
LEGISLATIVE COUNSEL'S DIGEST
AB 1176, as amended, Spitzer. Sexually violent predators :
petitions for release and discharge .
Existing law requires, prior to release from the custody of the
Department of Corrections and Rehabilitation of a person who has been
convicted of certain crimes of a sexual nature, the director to
refer that person to the State Department of Mental Health for
evaluation if the director determines that person may be a sexually
violent predator.
Under existing law, if the evaluation by the State Department of
Mental Health determines that the person is a sexually violent
predator, the department is required to forward a request for the
filing of a petition to the counsel designated by the county in which
the person was convicted. The law authorizes civil commitment of the
person to the State Department of Mental Health as a sexually
violent predator, for treatment in a secure facility, if the person
is adjudicated to be likely to engage in sexually violent criminal
behavior if discharged.
Existing law, as an initiative measure, may not be amended by the
Legislature, except by a 2/3 vote bill, or by a majority vote bill to
expand the scope of application of its provision or to increase the
punishment or penalties.
This bill would declare the intent of the Legislature to
subsequently amend this bill to include provisions that would enact
the recommendations of the Governor's High Risk Sex Offender Task
Force relating to jurisdiction over conditional release petitions in
cases where the county of commitment and the county of domicile of a
sexually violent predator are different.
Existing law authorizes the court to order the committed person to
be unconditionally discharged, or conditionally released for
supervised community treatment in the county of domicile, if certain
findings are made.
This bill would establish a process for determining the county to
hear the petition for conditional release or unconditional discharge
in cases where the county of commitment is other than the county of
domicile.
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 6608 of the Welfare
and Institutions Code is amended t o read:
6608. (a) (1) Nothing in this article shall
prohibit the person who has been committed as a sexually violent
predator from petitioning the court for conditional release or an
unconditional discharge without the recommendation or concurrence of
the Director of Mental Health. 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.
(2) (A) If a petition for conditional release or unconditional
discharge is filed with the superior court of the county of
commitment, and the county of domicile, as defined in Section 6608.5,
has not been determined, the superior court of the county of
commitment shall first make a ruling regarding the county of domicile
of the person before proceeding further with a hearing.
(B) If the court finds that the county of commitment is the county
of domicile, it shall resume proceedings on the petition.
(C) If the court finds that the county of domicile is a county
other than the county of commitment, the court shall suspend the
proceedings on the petition, and transfer the petition as set forth
in paragraph (3).
(3) If the person's county of domicile has been determined by the
superior court of the county of commitment to be a county other than
the county of commitment under paragraph (2), the superior court
shall transfer the petition for conditional release or unconditional
discharge to the superior court of the county of domicile and a copy
of the petition shall be served upon the attorney designated by the
county of domicile pursuant to subdivision (i) of Section 6601 within
five days of the date of transfer. The superior court in the county
of domicile may elect to hear the petition. If the court decides 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 not to hear the petition to the attorney designated by
the county of commitment and to the State Department of Mental
Health, within five days of the date of the courts decision not to
hear the petition.
(4) If the superior court in the county of domicile elects,
pursuant to paragraph (3), not to hear a petition, the superior court
in the county of commitment shall resume the proceedings on the
petition.
(b) 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
Mental Health at least 15 court days before the hearing date.
(c) 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 Mental Health for not
less than one year from the date of the order of commitment.
(d) 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. 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 Mental Health of the hearing date.
(e) Before placing a committed person in a state-operated forensic
conditional release program, the community program director
designated by the State Department of Mental Health 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) 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 21 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 hearing authorized by this section, the petitioner
shall have the burden of proof by a preponderance of the evidence.
(j) If the petition for conditional release is not made by 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) 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.
SECTION 1. It is the intent of the Legislature
to subsequently amend this measure to include provisions that would
enact the recommendations of the Governor's High Risk Sex Offender
Task Force relating to jurisdiction over conditional release
petitions in cases where the county of commitment and the county of
domicile of a sexually violent predator are different.