Existing law allows the records of a prison, county jail, city jail, or federal penitentiary to be used as prima facie evidence of the fact that a person being tried for a crime has been convicted of a prior crime.

This bill would allow specified documentary evidence to be used in a hearing challenging a determination by the Board of Parole Hearings that an inmate is mentally disordered, a commitment proceeding for an individual found to be mentally incompetent to stand trial, a hearing for the commitment of an individual to the State Department of State Hospitals as a sexually violent predator, a hearing to determine whether a person applying for restoration of sanity would be a danger to the health and safety of others due to mental defect, disease, or disorder, or a hearing to extend the commitment of a person to the State Department of State Hospitals, in order to establish the commission of an underlying offense and the details of that offense.

Existing law requires a court, in the case of a person committed to a state hospital or other treatment facility upon a finding that he or she was insane at the time a criminal offense was committed, to state the maximum term of commitment in its commitment order. Under existing law, the maximum term of commitment is the longest term of imprisonment which could have been imposed for the offense of which the person was convicted. Existing law allows a person to be committed beyond the maximum term of commitment if he or she represents a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder, as specified.

This bill would make technical, nonsubstantive changes to these provisions.

Date of Hearing: April 25, 2017

Counsel: Cheryl Anderson

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Allows documentary evidence to be introduced in specified mental health commitment proceedings. Specifically, this bill: Allows documentary evidence including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of State Hospitals (SDSH) to be introduced in order to establish the commission of an underlying offense and the details of that offense, as follows:

1. In a hearing to challenge a determination by the Board of Parole Hearings (BPH) that an inmate is a mentally disordered offender (MDO);
   
2. In a hearing to continue treatment of an MDO;
   
3. In a commitment proceeding for an individual found to be mentally incompetent to stand trial;
   
4. In a hearing for the commitment of an individual to the SDSH as a sexually violent predator (SVP);
   
5. In a hearing to determine whether a person applying for restoration of sanity, after being found not guilty by reasons of insanity (NGI), would be a danger to the health and safety of others due to mental defect, disease, or disorder; or,
   
6. In a hearing to extend the commitment of a person found NGI.

EXISTING LAW:

1. Prohibits a person from being tried or adjudged to punishment while that person is mentally incompetent. (Pen. Code, § 1367, subd. (a).)
   
2. Defines “mental incompetency” as when an individual who, as a result of mental disorder or developmental disability, is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (Pen. Code, § 1367, subd. (a).)
3. Provides competency proceedings for defendants accused of felonies, misdemeanors, or both. (Pen. Code, §§ 1367.1, 1368, 1368.1.) Mandates a court or jury trial on the issue of mental competence. (Pen. Code, § 1369.)
4. Requires, if the defendant is found mentally incompetent, the trial or judgment to be suspended until the person becomes mentally competent. (Pen. Code, § 1370, subd. (a)(1)(B).)
5. Provides the court with three placement options: [1] a state hospital; [2] a public or private treatment facility; or [3] outpatient treatment. Before choosing, the court must obtain a written evaluation from the community program director, and hear whether the defendant lacks the capacity to make decisions about the administration of antipsychotic medication. (Pen. Code, § 1370, subd. (a).)
6. States that an order for involuntary medication may be made only if, among other things, the court hears and finds that the defendant is a danger to self or others, or that a defendant charged with a serious crime is likely to be rendered competent by the medication. (Pen. Code, §§ 1370, subd. (a)(2)(B)(i)-(ii), 1370.01, subd. (a)(2)(B)(ii)-(iii).) An order for involuntary medication is valid for no more than one year and must be reviewed after six months. (Pen. Code, § 1370, subd. (a)(7).)
   
7. Provides that if a defendant charged with a registerable sex offense was previously found incompetent to stand trial for a registerable sex offense, or is currently the subject of incompetency proceedings arising out of a registerable sex offense, after the opportunity for a hearing, he or she must be committed to a state hospital unless the court finds that an alternative placement would provide more appropriate treatment. (Pen. Code, § 1370, subd. (a)(1)(B)(ii).)
   
8. Provides that if a defendant is charged with a registerable sex offense and has been denied bail, as specified, he or she must be committed to a state hospital unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment. (Pen. Code, § 1370, subd. (a)(1)(B)(iii).)
   
9. Requires, in felony cases, that the defendant be returned to court for mandatory competency hearings at 18-month intervals. (Pen. Code, § 1370, subd. (b)(4).) Both parties have the right to a jury trial. (Pen. Code, § 1369.)
   
10. Provides for the initiation civil commitment proceedings – conservatorship – when restoration to competency is unlikely or the maximum period of confinement has expired. (Pen. Code, §§ 1370(c)(2), 1370.1(c)(2); Welf. & Inst. Code, §§ 5000 et seq.)
    
11. Provides that if a defendant is found NGI, he or she will be committed to the SDSH unless it is determined that since the time of the offense, the defendant has recovered his or her sanity. (Pen. Code, § 1026, subds. (a) & (b).)
12. Provides a two-step procedure for processing an application for release on the ground that that the defendant has regained his or her sanity:
    
    1. First, the defendant will be placed in an appropriate conditional release program for one year if, at a hearing, it is demonstrated that he or she will not “be a danger to the health and safety of others, due to mental defect, disease, or disorder, while under supervision and treatment in the community”; and,
    2. Second, typically after one year, the court holds a trial to determine whether the defendant’s sanity has been restored – i.e., whether “the applicant is no longer a danger to the health and safety of others due to mental defect, disease, or disorder.” (Pen. Code, § 1026.2, subd. (e).)
       
13. Provides that at the end of the defendant’s maximum term of confinement, the district attorney may petition to extend the defendant’s commitment another two years. (Pen. Code, § 1026.5, subd. (b)(1), (2) & (8).) This requires a new jury trial where the prosecution must prove that the defendant “by reason of mental disease, defect, or disorder represents a substantial danger of physical harm to others.” (Pen. Code, § 1026.5, subd. (b)(1), (4) & (8).) “The person shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings. All proceedings shall be in accordance with applicable constitutional guarantees. (Pen. Code, § 1026.5, subd. (b)(7).)
    
14. Provides for the civil commitment of defendants known as sexually violent predators (SVP). (Welf. & Inst. Code, §§ 6600-6609.3.)
15. Defines a sexually violent predator (SVP) as a person who has been convicted of a specified 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. A sexually violent offense includes specified sexual acts committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person, and that are committed on, before, or after the effective date of this provision and result in a conviction or a finding of not guilty by reason of insanity. (Welf. & Inst. Code, §§ 6600, 6600.1.)
16. Allows proof of the existence and qualifying nature of an alleged sexually violent predator’s qualifying prior convictions to be established by documentary evidence: “The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by [SDSH].” (Welf. & Inst. Code § 6600, subd. (a)(3).)
    
17. Provides for administrative screening and evaluations prior to the expiration of the defendant’s prison term where CDCR believes the prisoner may be a sexually violent predator. (Pen. Code, § 6601.)
    
18. Allows the district attorney to file a petition for commitment of the defendant as an SVP if SDSH determines the person is an SVP and the district attorney agrees with the recommendation. (Pen. Code, § 6601.)
    
19. Requires a hearing be conducted at which the superior court must 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 release. (Welf. & Inst. Code, § 6602.)
    
20. Requires, where probable cause is found, 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 release from the jurisdiction of CDCR or other secure facility. (Welf. & Inst. Code, § 6602.)
21. Provides that upon a finding the person is an SVP, the person will be committed to the SDSH for an indeterminate term with the right to a current examination once a year. (Welf. & Inst. Code, §§ 6604, 6604.9.)
    
22. Provides a process for obtaining conditional or unconditional release, a process that may be repeated annually if unsuccessful. (Welf. & Inst. Code, §§ 6604.9, 6605, 6607, 6608.)
    
23. Allows a person found to be an SVP to petition for conditional release one year after confinement. The issue as a conditional release hearing is whether the person would be a danger to the health and safety of others in that it is likely that he or she will engage in sexual violent criminal behavior due to his or her diagnosed mental disorder if under supervision and treatment in the community. (Welf. & Inst. Code, § 6608, subds. (a), (d) & (e).)
    
24. Provides that parolees and former prisoners who have been convicted of a specified felony related to a severe mental disorder and continue to pose a danger to society (MDO) may be involuntarily committed. (Pen. Code, § 2960 et seq.)
    
25. Requires, as a condition of parole, a prisoner who has a severe mental disorder that is not in remission and who meets specified criteria to be treated by SDSH and provided the necessary treatment. In order for that commitment to occur, requires, among other criteria, that the severe mental disorder be one of the causes of, or an aggravating factor in, the commission of the crime, as defined, for which the prisoner was sentenced to prison. Requires the prisoner to have been in treatment for the severe mental disorder for 90 days or more within the year prior to the prisoner’s parole or release. Establishes procedures for the evaluation of a prisoner under these provisions by specified health practitioners of the SDSH and the CDCR. (Pen. Code, § 2962.)
    
26. Allows the existence or qualifying violent nature of an alleged MDO’s crime of commitment to prison to be shown by documentary evidence. “The details underlying the commission of the offense that led to the conviction, including the use of force or violence, causing serious bodily injury, or the threat to use force or violence likely to produce substantial physical harm, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the [SDSH].” (Pen. Code, § 2962, subd. (f).)
    
27. Allows the prisoner to challenge the MDO determination both administratively (at a

hearing before the board) and judicially (via a superior court jury trial). (Pen. Code, § 2966.) During the jury trial, “[t]he court may, upon stipulation of both parties, receive in evidence the affidavit or declaration of any psychiatrist, psychologist, or other professional person who was involved in the certification and hearing process, or any professional person involved in the evaluation or treatment of the petitioner during the certification process.” (Pen. Code, § 2966, subd. (b).)

1. Allows the district attorney to file a petition in the superior court seeking a one-year extension of the MDO commitment, subject to the same procedural and substantive rules of the original commitment trial. (Pen. Code § 2970.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author’s Statement: According to the author, “Recent case law has called into question the ability of doctors and other expert witnesses to use documentary evidence when assessing the mental health of individuals who have been civilly committed in lieu of criminal convictions. This makes it difficult to meaningfully consider whether an individual presents a risk to the public upon release.

“AB 1554 would standardize the various mental health hearings, making them all civil in nature and allowing the use of documentary evidence to prove the issues involved, rather than requiring live testimony from witnesses and victims, in many cases years after the incident occurred.”

1. California Mental Commitment Regimens: There are three principal categories of California mental health commitments – “not guilty by reason of insanity (NGI), the Mentally Disordered Offender (MDO) law, and the Sexually Violent Predators (SVP) Act. All of these are nominally ‘civil’ commitment regimens, which nonetheless spring out of the criminal justice system.” (O’Connell, California Mental Health Commitment Regimens, First District Appellate Project (Jan. 2006) at p. 1.) The law also provides for competency proceedings dealing with a defendant’s mental status during the pendency of a criminal case. These competency proceedings are also civil in nature. (Baqleh v. Superior Court (2002) 100 Cal.App.4^th 478,490-491.)
   
2. Hearsay Evidence Under the Guise of Explaining an Expert’s Opinion
   

Hearsay is a statement made out of court that is offered to prove a fact at a trial or hearing. Subject to exceptions under the law, hearsay is inadmissible. (Evid. Code, § 1200.) One of the principal reasons for the hearsay rule is to exclude declarations where the veracity of the declarant cannot be tested by cross-examination. (Evid. Code, § 1200, Law Revision Comments (1965).)

Historically, hearsay information could be communicated to the court or jury in mental health commitment hearings and trials under the guise of explaining the basis for the expert’s opinion. (Evid. Code § 801(b), 802; see O’Connell, supra, at p. 2.) Until recently, California courts were bound to adhere to the legal fiction that such evidence is not offered for its truth, but only to reveal the basis for the expert’s opinions. (People v. Gardeley (1996) 14 Cal.4th 605, 617-618, disapproved in People v. Sanchez (2016) 63 Cal.4^th 665, 686, fn. 13 (Sanchez); People v. Thomas (2005) 130 Cal.App.4th 1202, 1210; People v. Valadez (2013) 220 Cal.App.4th 16, 30; People v. Sisneros (2009) 174 Cal.App.4th 142, 153–154, and cases cited therein; see also People v. Hill (2011) 191 Cal.App.4th 1104, 1129–1131 [criticizing Gardeley but following it]; People v. Miller (2014) 231 Cal.App.4^th 1301, 1310 [“trial courts have long instructed juries that out-of-court statements related by experts as basis evidence may not be considered for the truth of the matter stated but only for the purpose of evaluation the expert’s opinion”].) In Sanchez, our state Supreme Court recognized that juries must necessarily consider expert basis testimony for its truth in order to evaluate the expert’s opinion, “and confrontation problems cannot be avoided by giving a limiting instruction that such testimony should not be considered for its truth.” (People v. Sanchez, supra, 63 Cal.4^th at p. 684.)

The California Supreme Court’s decision in Sanchez attempted to clarify the permissible scope of basis testimony by an expert: “When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert’s opinion, it cannot logically be asserted that the hearsay content is not offered for its truth. In such a case, ‘the validity of [the expert’s] opinion ultimately turn[s] on the truth’… of the hearsay statement.” (Id. at pp. 682-683, quoting Williams v. Illinois (2012) 567 U.S. 50 [183 L. Ed. 2d 89, 132 S.Ct. 2221, 2258] (conc. opn. of Thomas, J.).) Thus, if an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception or through an appropriate witness. (People v. Sanchez, supra, 63 Cal.4th at p. 684, fn. omitted.)

“If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing.” (People v. Sanchez, supra, 63 Cal.4^th at p. 686.) “Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony.” (Id. at p. 689.)

1. Hearsay Exceptions to Allow Documentary Evidence to be Admitted in SVP and MDO Proceedings

Both SVP and MDO law contain unique hearsay exceptions to allow admission of documentary evidence to prove the existence and nature of an alleged qualifying conviction.

AB 3130 (Boland) Chapter 462, Statutes of 1996, amended the SVP law (Welf. & Inst. Code, § 6600 et seq) to permit the existence and details of predicate sexual offenses to be proven by documentary evidence. (Welf. & Inst. Code, § 6600, subd. (a)(3).) SB 1295 (Nielsen) Chapter 430, Statutes of 2016, amended MDO law to permit the existence, nature, and details of predicate offenses to be proved by documentary evidence. (Pen. Code, § 2962, subd. (f).) The documentary evidence may include, but is not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the SDSH. (Pen. Code, §§ 6600, subd. (a)(3) [SVP], 2962, subd. (f) [MDO]; see People v. Otto (2001) 26 Cal.4th 200, 207–208 (Otto).)

This bill seeks to create a broader hearsay exception for the admission of similar documentary evidence in various types of mental health commitment trials and hearings. While AB 3130 and SB 1295 allowed documentary evidence to prove a predicate prior conviction in SVP and MDO commitment proceedings (Welf. & Inst. Code, § 6600, subds. (a)(1)-(3); Pen. Code, § 2972, subds. (b), (e) & (f)), this bill seeks to permit admission of documentary evidence in order to establish the commission of an underlying offense and the details of that offense in various SVP, MDO, NGI, and competency hearings and trials. The broad scope of AB 1554 includes hearsay stemming from unproven allegations.

1. Constitutional Considerations -- Confrontation and Due Process Rights in Mental Health Commitment and Competency Proceedings

“The confrontation clause of the Sixth Amendment to the federal Constitution, made applicable to the states through the Fourteenth Amendment, provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’ The right of confrontation includes the right of cross-examination.” (People v. Fletcher (1996) 13 Cal.4th 451, 455; Pointer v. Texas (1965) 380 U.S. 400, 403-407 [13 L.Ed.2d 923, 85 S.Ct. 1065].) In Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354], the United States Supreme Court held that the confrontation clause bars the admission of out-of-court testimonial hearsay statements except when “the declarant is unavailable ...” and the defendant “had a prior opportunity to cross-examine” the declarant. (Id. at p. 59.)

Due to the nominally civil character of an involuntary mental hospitalization, courts have held there is not a right to confrontation under the state and federal confrontation clause. (See e.g., People v. Otto, supra, 26 Cal.4^th at p. 214; People v. Angulo (2005) 129 Cal.App.4^th 1349, 1367.) Recent developments in the law call these authorities into question. NGI law specifically provides defendants in commitment extension hearings the rights constitutionally enjoyed by criminal defendants. (Pen. Code, § 1026.5, subd. (b)(7).) One of the constitutional rights enjoyed by criminal defendants is the right to confront and cross examine witnesses under the Sixth Amendment. To the extent that SVPs, MDOs, and defendants subject to competency trials and hearings are found to be similarly situated to NGIs, they would arguably be entitled to the same Sixth Amendment right to confrontation under equal protection analysis. (See People v. Curlee (2015) 237 Cal.App.4^th 709, 720 [recognized SVPs have the same Fifth Amendment right not to testify against themselves as NGIs, applying equal protection analysis].)

Sixth Amendment aside, defendants in these civil proceedings nonetheless have a due process right of confrontation rooted in fundamental principles of fairness and decency. (See People v. Otto, supra, 26 Cal.4^th at p. 209 [setting forth the due process test in the context of SVP proceedings].) In Otto, the California Supreme Court addressed a constitutional challenge to the admission of hearsay statements in a probation report in the context of the SVP hearsay exception. The Court noted that numerous factors could be considered in evaluating the reliability of hearsay statements in a presentence report. These factors include “the context in which the statements appear. The presentence report is written by a court officer regarding a crime to which the defendant either pled or was found guilty. Transcripts from any preliminary hearing or trial held regarding the predicate conviction are also pertinent, as well as any indicia the defendant challenged the accuracy of the hearsay statements at the underlying criminal proceeding. Relevant factors further include the circumstances surrounding the making of the statement, if known, such as spontaneity and consistent repetition, the mental state of the declarant, use of terminology unexpected of a child of a similar age, lack of motive to fabricate, and whether the hearsay statement was corroborated.” (People v. Otto, supra, 26 Cal.4^th at p. 211.)

The Court concluded that victim statements included in probation reports possessed sufficient indicia of reliability to satisfy due process, where the defendant had been convicted of the qualifying offense to which the victim statements related. As the Court noted, this factor will nearly always be present in an SVP proceeding because the SVP law requires conviction of a predicate offense. (People v. Otto, supra, 26 Cal.4th at pp. 210-213.) Similarly, MDO law requires conviction of a predicate offense. (Pen. Code, § 2962, subds. (b) & (e).)

Under current SVP and MDO law, the documentary exceptions to the hearsay rule apply only to the existence and details of prior convictions. They do not apply where the prosecution seeks to introduce hearsay regarding charges which did not result in conviction. This bill would expand the documentary hearsay exception to include evidence of the alleged commission of an underlying offense and the details of that offense. Arguably, this type of hearsay evidence does not have the same indicia of reliability to satisfy due process, as in Otto.

Hearsay exceptions reflect situations in which the evidence is reliable and trustworthy. (See also People v. Cudjo (1993) 6 Cal.4th 585 [focus of exceptions to hearsay rule is on reliability of out-of-court declaration; thus, hearsay exceptions generally reflect situations in which circumstances affording some assurance of trustworthiness compensate for absence of oath, cross-examination, and jury observation]; see also, In re Michael G. (1993) 19 Cal.App.4th 1674 [reasoning behind exceptions to the hearsay rule is that experience has shown that there are situations where it is impossible or impractical to present actual witness, yet proffered necessary evidence is inherently trustworthy under the circumstances].) The broad provisions of AB 1554 will permit the admission of unreliable hearsay.

The broad provisions of this bill also arguably turn these mental health commitment proceedings into a “mere” paper review, as opposed to a full evidentiary trial or hearing, which may also implicate due process principles. (See In re Parker (1998) 60 Cal.App.4^th 1453.)

Practical Considerations: With regard to a hearing to extend the commitment of an individual found NGI, the statute specifically provides: “The person shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings. All proceedings shall be in accordance with applicable constitutional guarantees.” (Pen. Code, § 1026.5, subd. (b)(7).) That would include a Sixth Amendment confrontation right that otherwise has been found not to apply to these nominally civil mental health proceedings. The language of the bill to introduce documentary evidence under this section is inconsistent with the language of the statute providing a Sixth Amendment right to confrontation.

It is also questionable whether the language of this bill belongs in Penal Code section 969b, which is a section having to do with pleading and prima facie evidence of alleged prior convictions. As discussed ante, this bill involves proof of the commission, not necessarily conviction, of an offense.

1. Argument in Support: According to the San Diego County District Attorney, “Recent case law has called into question the ability of doctors and other expert witnesses to use documentary evidence when assessing the mental health of individuals who have been civilly committed in lieu of criminal convictions. This makes it difficult to meaningfully consider whether an individual presents a risk to the public upon release. AB 1554 would explicitly authorize the use of documentary evidence to prove the issues involved, rather than requiring live testimony from witnesses and victims, in many cases years after the incident occurred.”
   
2. Argument in Opposition: According to the California Public Defender’s Association, “In its current form, Penal Code section 969, codified in Chapter 2 (Rules of Pleading) of Title 5 of Part 2 (Criminal Procedure) of the Penal Code, provides:

“In charging the fact of a previous conviction of felony, or of an attempt to commit an offense which, if perpetrated, would have been a felony, or of theft, it is sufficient to state, “That the defendant, before the commission of the offense charged herein, was in (giving the title of the court in which the conviction was had) convicted of a felony (or attempt, etc., or of theft).” If more than one previous conviction is charged, the date of the judgment upon each conviction may be stated, and all known previous convictions, whether in this State or elsewhere, must be charged. (Pen. Code, § 969.)

“AB 1554 proposes to amend section 969 to add a new and entirely unrelated subdivision that has nothing to do with the rules of pleading; rather, the proposed amendment deals with the use of various records containing documentary hearsay in various types of noncriminal proceedings, such as parole proceedings governing mentally disordered prisoners (Pen. Code, § 2962, 2966, 2972, and 2970), pre-trial civil commitment proceedings pertaining to individual who are incompetent to stand trial by virtue of a mental condition, post-conviction civil proceedings to commit individuals alleged to be Sexually Violent Predators (Welf. & Inst., § 1026.2), and post-conviction conditional release proceedings for individuals adjudicated not guilty by reason of insanity (Pen. Code, § 1026.2), to establish the details of any prior criminal offense allegedly committed by the person who is the subject of the proceeding. From a purely organizational perspective, this type of language does not belong in the California Penal Code, and it certainly doesn’t belong in the section governing the Rules of Pleading or in section 969, which is a rule of criminal procedure.

“More important, though, the proposed amendment of AB 1554 shouldn’t be included in any statute, because it conflicts with well-settled principles of due process and their application to cases involving involuntary civil commitment.

“In some civil commitment proceedings, such as those codified in Penal Code section 2962 (Mentally Disordered Offender Act) and those codified in Welfare and Institutions Code section 6600 (Sexually Violent Predator Act), the facts underlying the offense of which the proposed committee was convicted may be relevant to whether the person meets the statutory criteria for civil commitment. For instance, in a proceeding to commit a person as a Mentally Disordered Offender, it must be proved that the person was sentenced to prison for a conviction of a qualifying offense, some of which are described in terms of the underlying conduct; i.e., a crime in which the person “used force or violence, or caused serious bodily injury”. And in a proceeding to commit a person as a Sexually Violent Predator, it must be proved that the person has sustained conviction for a “sexually violent offense,” which includes crimes committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or by threatening to retaliate in the future against the victim or any other person, or involving a minor younger than fourteen. In such proceedings, the government often proves the nature of the underlying offense through the admission of documentary records, including a probation officer’s summary of the facts of the offense. In fact, the Sexually Violent Predator Act specifically provides for the use of documentary evidence to prove the conduct underlying the pertinent offense. (Welf. & Inst., § 6600, subd. (a)(3).)

“However, to assure due process to those made subject to such proceedings, only reliable information contained in such documents may be used. Not all hearsay statements in such documents are reliable enough to be considered by a trier of fact, particularly where a person’s liberty is at stake. Courts understand that, in evaluating the reliability of hearsay statements, including presentence reports,^[1] they may consider numerous factors, including the context in which the statements appear. Paramount to the question of reliability of information relayed in such a report, is the information’s source. For instance, where the statement of the offense is a summary of a reporter’s transcript of sworn witness testimony obtained in the context of an adversarial judicial proceeding, it is more likely to be reliable than where the statement is a probation officer’s summary of a police officer’s summary of statements of witnesses which, in themselves, are summaries taken from handwritten notes. Relevant factors also include the circumstances surrounding the making of the statement, if known, such as spontaneity and consistent repetition, the mental state of the declarant, lack of motive to fabricate, and whether the hearsay statements are corroborated. (People v. Otto (2001) 26 Cal.4th 200, 211 [reliable documentary hearsay may be used in SVP proceedings to prove facts underlying offense without violating due process]; People v. Nelson (2012) 209 Cal.App.4th 698, 713 and People v. Stevens (2012) 62 Cal.4th 325, 339 [same rule with regard to MDO proceedings].) This standard is not only constitutionally mandated, it is highly workable.

“AB 1554 jeopardizes important due process protection which must be afforded for civil commitment proceedings in California to be constitutionally valid.”

1. Prior Legislation:
   
   1. SB 1295 (Nielsen) Chapter 430, Statutes of 2016, amended MDO law to permit the existence, nature, and details of predicate offenses to be proved by documentary evidence.
      
   2. AB 3130 (Boland) Chapter 462, Statutes of 1996, amended the SVP law to permit the existence and details of predicate sexual offenses to be proven by documentary evidence.
      

REGISTERED SUPPORT / OPPOSITION:

Support

San Diego County District Attorney

Opposition

American Civil Liberties Union

California Attorneys for Criminal Justice

California Public Defenders Association

Analysis Prepared by:

1. “A presentence report is written by a court officer regarding a crime to which the defendant either pled or was found guilty.” ↑