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AB-1641 Sexually violent predators.(2021-2022)

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Date Published: 01/12/2022 09:00 PM
AB1641:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1641


Introduced by Assembly Member Maienschein

January 12, 2022


An act to amend Section 1606 of the Penal Code, and to amend Sections 6602, 6608, and 6608.5 of, and to add Sections 6608.6 and 6609.4 to, the Welfare and Institutions Code, relating to sexually violent predators.


LEGISLATIVE COUNSEL'S DIGEST


AB 1641, as introduced, Maienschein. Sexually violent predators.
Existing law provides for the civil commitment of a person who is determined to be a sexually violent predator. Existing law requires the Secretary of the Department of Corrections and Rehabilitation to refer certain people for evaluation by the State Department of State Hospitals if the secretary determines that the person may be a sexually violent predator. Existing law requires, if the State Department of State Hospitals determines that a person is a sexually violent predator, the Director of State Hospitals to forward a request to a specified county for a petition to be filed for the person to be committed to a facility for mental health treatment. Existing law requires a judge of the superior court to review the petition and to determine whether there is probable cause to believe that the individual is likely to engage in sexually violent predatory criminal behavior upon release.
This bill would authorize the use of documentary evidence of the commission of another sexual offense or offenses and the details underlying the commission of another sexual offense at the probable cause hearing and would prohibit that documentary evidence from being excluded on the basis that it is hearsay evidence.
Existing law establishes a procedure by which a person committed as a sexually violent predator may petition for conditional release and requires the court, if it makes a specified determination, to place the person on conditional release for one year. Existing law authorizes the committed person, after a minimum of one year on conditional release, to petition the court for unconditional release, with or without the recommendation or concurrence of the Director of State Hospitals.
This bill would instead require the court, if it makes that determination, to place the person on conditional release for a minimum of one year. The bill would authorize the person to petition for unconditional discharge after a minimum of one year on conditional release, but prior to the expiration of the term of conditional release ordered by the court, only with the recommendation or concurrence of the Director of State Hospitals, but would authorize the person to petition for unconditional discharge with or without the recommendation or concurrence of the Director of State Hospitals after the expiration of the term of conditional release ordered by the court. The bill would also require the State Department of State Hospitals to solicit input from local law enforcement agencies prior to submitting to the court a recommendation for, or proposing, a community placement location for a person and would require a person on conditional release or outpatient status to be monitored by a global positioning system until the person is unconditionally discharged.
Existing law prohibits a committed person on conditional release from being placed within one-quarter mile of any public or private school providing instruction in kindergarten or any of grades 1 to 12, inclusive, if the person is been convicted of certain sexual offenses or if the court finds that the committed person has a history of improper sexual conduct with children.
This bill would instead prohibit all committed persons on conditional release from being placed within one-quarter mile of those schools, or within one-quarter mile of any public or private park that hosts youth activities, any public or private daycare center, or any community recreational center that hosts youth activities.
Existing law authorizes a person committed to a state hospital or other treatment facility pursuant to certain provisions, including pursuant to the above-described provisions, to be placed on outpatient status for a term of one year or less.
This bill would instead specify that, for a person committed as a sexually violent predator, the term of outpatient status shall be at least one year.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1606 of the Penal Code is amended to read:

1606.
 Outpatient status shall be for a period not to exceed one year. year, except in the case of a person committed pursuant to Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code, in which case outpatient status shall be for at least one year. At the end of the period of outpatient status approved by the court, the court shall, after actual notice to the prosecutor, the defense counsel, and the community program director, and after a hearing in court, either discharge the person from commitment under appropriate provisions of the law, order the person confined to a treatment facility, or renew its approval of outpatient status. Prior to such hearing, the community program director shall furnish a report and recommendation to the medical director of the state hospital, where appropriate, and to the court, which the court shall make available to the prosecutor and defense counsel. The person shall remain on outpatient status until the court renders its decision unless hospitalized under other provision of the law. The hearing pursuant to the provisions of this section shall be held no later than 30 days after the end of the one-year period of outpatient status unless good cause exists. The court shall transmit a copy of its order to the community program director or a designee.

SEC. 2.

 Section 6602 of the Welfare and Institutions Code is amended to read:

6602.
 (a) A judge of the superior court shall review the petition and shall determine whether there is probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her their release. The person named in the petition shall be entitled to assistance of counsel at the probable cause hearing. Upon the commencement of the probable cause hearing, the person shall remain in custody pending the completion of the probable cause hearing. If the judge determines there is not probable cause, he or she the judge shall dismiss the petition and any person subject to parole shall report to parole. If the judge determines that there is probable cause, the judge shall order that the person remain in custody in a secure facility until a trial is completed and shall order that a trial be conducted to determine whether the person is, by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her their release from the jurisdiction of the Department of Corrections and Rehabilitation or other secure facility.
(b) The probable cause hearing shall not be continued except upon a showing of good cause by the party requesting the continuance.
(c) The court shall notify the State Department of State Hospitals of the outcome of the probable cause hearing by forwarding to the department a copy of the minute order of the court within 15 days of the decision.
(d) At the probable cause hearing, evidence of the commission of another sexual offense or offenses and the details underlying the commission of another sexual offense may be shown by documentary evidence including, but not limited to, police reports, hospital records, prison records, preliminary hearing transcripts, trial transcripts, and probation and sentencing reports. Notwithstanding Division 10 (commencing with Section 1200) of the Evidence Code, documentary evidence offered pursuant to this subdivision shall not be excluded on the basis that it is hearsay evidence.

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 they would not be a danger to others in that it is not likely that he or she they 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 the person will engage in sexually violent criminal behavior due to his or her their 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 they so requests. request. If the court at the hearing determines that the committed person would not be a danger to others due to his or her their 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 at least 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 their 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) (1) (A) After a minimum of one year on conditional release, but prior to the expiration of the term of conditional release ordered by the court pursuant to subdivision (g), the committed person, with or without the recommendation or concurrence of the Director of State Hospitals, may petition the court for unconditional discharge. The
(B) After the expiration of the term of conditional release ordered by the court pursuant to subdivision (g), the committed person may petition the court for unconditional discharge with or without the recommendation or concurrence of the Director of State Hospitals.
(2) 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 the person is no longer a danger to the health and safety of others in that it is not likely that he or she they will engage in sexually violent criminal behavior.

SEC. 4.

 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 their true, fixed, and permanent home and principal residence and to which he or she has they have manifested the intention of returning whenever he or she is they are absent. For the purposes of determining the county of domicile, the court shall 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 they were last incarcerated in the state prison or from which he or she was they were 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 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: inclusive, any public or private park that hosts youth activities, any public or private daycare center, or any community recreational center that hosts youth activities.

(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) If the court determines that placement of a person in the county of his or her their domicile pursuant to subdivision (a) is not appropriate, the court shall consider the following circumstances in designating his or her their placement in a county for conditional release:
(1) If and how long the person has previously resided or been employed in the county.
(2) If the person has next of kin in the county.
(h) (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. 5.

 Section 6608.6 is added to the Welfare and Institutions Code, to read:

6608.6.
 A person who is released on outpatient status or granted conditional release pursuant to this article shall be monitored by a global positioning system (GPS) until the person is unconditionally discharged.

SEC. 6.

 Section 6609.4 is added to the Welfare and Institutions Code, to read:

6609.4.
 Prior to submitting to the court a recommendation for, or proposing, a community placement location for a committed person, the department or its designee shall solicit input from the sheriff or chief of police, or both, that have jurisdiction over the location.